EXHIBIT 10.2.1
TeleCorp
General Agreement
for Purchase of
PCS Systems and Services between
Telecorp PCS, Inc. and
Lucent Technologies, Inc.
TABLE OF CONTENTS
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GENERAL AGREEMENT FOR PURCHASE OF PERSONAL COMMUNICATIONS SYSTEMS AND
SERVICES BETWEEN TELECORP PCS, INC. AND LUCENT TECHNOLOGIES INC.
1. ARTICLE I GENERAL PROVISIONS APPLICABLE TO ENTIRE AGREEMENT...... 2
1.1 HEADINGS AND DEFINITIONS...................................... 2
1.2 TERM OF AGREEMENT............................................. 8
1.3 SCOPE......................................................... 9
1.4 MINIMUM MARKET COMMITMENT..................................... 10
1.5 ADDITIONAL PURCHASES.......................................... 10
1.6 PLANNING INFORMATION.......................................... 11
1.7 ORDERS........................................................ 12
1.8 ORDER ACCEPTANCE.............................................. 12
1.9 CHANGES IN CUSTOMER'S ORDERS.................................. 13
1.10 PRICES, DISCOUNTS AND INCENTIVES.............................. 13
1.11 CO-OP MARKETING FUND.......................................... 20
1.12 INVOICES AND TERMS OF PAYMENT................................. 23
1.13 PURCHASE MONEY SECURITY INTEREST.............................. 25
1.14 MOST FAVORED CUSTOMER......................................... 26
1.15 DELIVERY AND INSTALLATION SCHEDULE............................ 26
1.16 SYSTEM LOCK DOWN; COMPLETION DELAY............................ 27
1.17 TRANSPORTATION................................................ 28
1.18 PACKING, MARKING, AND SHIPPING................................ 29
1.19 TITLE AND RISK OF LOSS........................................ 29
1.20 COMPLIANCE WITH LAWS.......................................... 30
1.21 TAXES......................................................... 31
1.22 TRAINING...................................................... 31
1.23 TERMINATION FOR CONVENIENCE................................... 31
1.24 CANCELLATION FOR BREACH....................................... 32
1.25 PATENTS, TRADEMARKS AND COPYRIGHTS............................ 32
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1.26 USE OF INFORMATION............................................ 34
1.27 NOTICES....................................................... 35
1.28 RIGHT OF ACCESS............................................... 36
1.29 INDEPENDENT CONTRACTOR........................................ 36
1.30 CUSTOMER'S REMEDIES........................................... 36
1.31 FORCE MAJEURE................................................. 38
1.32 ASSIGNMENT.................................................... 38
1.33 PUBLICITY..................................................... 39
1.34 APPLICABLE LAW................................................ 39
1.35 SURVIVAL OF OBLIGATIONS....................................... 39
1.36 SEVERABILITY.................................................. 39
1.37 NON-WAIVER.................................................... 40
1.38 CUSTOMER RESPONSIBILITY....................................... 40
1.39 PUBLICATION OF AGREEMENT...................................... 40
1.40 ARBITRATION................................................... 40
2.ARTICLE II PROVISIONS APPLICABLE TO THE PURCHASE OF PRODUCTS...... 41
2.1 GENERAL....................................................... 41
2.2 PRODUCT FEATURES COMMITMENT................................... 41
2.3 PRODUCT AVAILABILITY.......................................... 43
2.4 DOCUMENTATION................................................. 43
2.5 PRODUCT COMPLIANCES........................................... 43
2.6 PRODUCT CHANGES............................................... 44
2.7 CONTINUING PRODUCT SUPPORT- PARTS AND SERVICES................ 45
2.8 SPECIFICATIONS................................................ 46
2.9 CUSTOMER TECHNICAL SUPPORT.................................... 46
2.9A CLASS A AND B CHANGES......................................... 46
2.10 PRODUCT WARRANTY.............................................. 50
3.ARTICLE III PROVISIONS APPLICABLE TO THE LICENSING OF SOFTWARE.... 55
3.1 GENERAL....................................................... 55
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TABLE OF CONTENTS
(continued)
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3.2 LICENSE....................................................... 55
3.3 TITLE, RESTRICTIONS AND CONFIDENTIALITY....................... 56
3.4 CHANGES IN LICENSED MATERIALS................................. 56
3.5 MODIFICATIONS TO SOFTWARE..................................... 57
3.6 MODIFICATION BY CUSTOMER...................................... 57
3.7 RELATED DOCUMENTATION......................................... 57
3.8 SOFTWARE WARRANTY............................................. 57
3.9 CANCELLATION OF LICENSE....................................... 61
3.10 TAXES APPLICABLE TO SOFTWARE.................................. 62
3.11 LIMITED TRANSFERABILITY....................................... 62
3.12 AVAILABILITY AND SUPPORT OF LICENSED MATERIAL FEATURES/
LICENSED MATERIAL UPDATES..................................... 63
3.13 YEAR 2000 COMPLIANCE WARRANTY................................. 64
4.ARTICLE IV............................................................
4.1 GENERAL....................................................... 65
4.2 ACCEPTANCE OF INSTALLATION.................................... 65
4.3 CONDITIONS OF INSTALLATION AND OTHER SERVICES PERFORMED ON
CUSTOMER'S SITE............................................... 66
4.3.1 ITEMS PROVIDED BY CUSTOMER............................. 67
4.3.2 ITEMS TO BE FURNISHED BY SELLER........................ 70
4.4 WORK DONE BY OTHERS........................................... 72
4.5 SERVICES WARRANTIES........................................... 72
5.ARTICLE V ENTIRE AGREEMENT AND EXECUTION ............................ 73
5.1 ENTIRE AGREEMENT.............................................. 73
5.2 COUNTERPARTS.................................................. 73
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ATTACHMENT A - PRICING
ATTACHMENT B - FINANCING AGREEMENTS
ATTACHMENT C - RESPONSIBILITY MATRIX
ATTACHMENT D - ACCEPTANCE TESTING PLAN/PERFORMANCE METRICS
ATTACHMENT E - SUBSCRIBER PROJECTIONS
ATTACHMENT F - MILESTONE TIMELINE
ATTACHMENT G - DUPLEXER & FILTER SPECIFICATIONS
ATTACHMENT H - FORM OF EXTENDED WARRANTY AGREEMENT
ATTACHMENT I - OPTIONAL SOFTWARE FEATURE LIST
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GENERAL AGREEMENT FOR PURCHASE
OF PERSONAL COMMUNICATIONS SYSTEMS AND SERVICES
This is an agreement ("Agreement")(No. LNM980501JATEL) between Lucent
Technologies Inc., ("Seller" or "Lucent"), a Delaware corporation having an
office at 000 Xxxx Xxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000, and TeleCorp PCS, Inc.
("Customer"), a Delaware corporation having an office at 0000 00xx Xxxxxx, X.X.,
Xxxxx 000, Xxxxxxxxxx, X.X. 00000.
WHEREAS, the Customer desires to provide Personal Communications Services
("PCS") at or near the 1.9 GHz bands under a license(s) issued by the Federal
Communications Commission ("FCC"); and
WHEREAS, the Customer desires Seller to be a substantial supplier of the
wireless base stations, switches, power, cable and transmission equipment and
system integration services to include but not be limited to engineering
services, such as preparation of equipment specifications, and installation of
the networks, such as equipment installation, equipment removal and cable
mining, and maintenance and repair of their networks ("Services");
NOW, THEREFORE, the parties agree to the following terms and conditions.
1. ARTICLE I
GENERAL PROVISIONS APPLICABLE TO ENTIRE AGREEMENT
1.1 HEADINGS AND DEFINITIONS
All headings used in this Agreement are inserted for convenience only and
are not intended to affect the meaning or interpretation of this Agreement or
any clause. For the purpose of this Agreement, the following definitions will
apply:
"Acceptance Date" means the date on which an Initial System or Service is
accepted or, as provided in this Agreement, is deemed to have been accepted
by Customer, and may be referred to as "Acceptance" or in the verb form
"Accepted";
"Acceptance Test" means the test to be performed under the terms of this
Agreement, and specified in Attachment D, during the Acceptance Test Period
to determine whether an Initial System in each MTA or Market substantially
conforms
to all applicable Specifications and thereafter the tests to be performed
for subsequent installation of Products to determine whether such products
meet the system element specifications;
"Acceptance Test Period" means the period of time in days agreed to by the
parties and specified in Attachment D allowed for performance of an
Acceptance Test;
"Advertising" means all advertising, sales promotion, press releases, and
other publicity matters relating to performance under this Agreement;
"Affiliate" of a corporation means its Subsidiaries, any company of which
it is a Subsidiary, and other Subsidiaries of such company, and any entity
controlled, controlling or under common control with such corporation;
"Annual Release Maintenance Fee" means those recurring annual fees of the
Seller, invoiced annually in January and based upon the number of MSCs
installed and BTSs installed at the time the invoice is issued, full
payment of which entitles the Customer to receive all core features in
standard software releases, software enhancements and software upgrades
applicable to TDMA PCS Products (but not including Optional Software
Features) which will be made available to Customer when made generally
available by Seller during the period for which the fees were paid. All
Annual Release Maintenance Fees shall be entitled to the discounts set
forth in Section 1.10.1;
"Class A Change" means a modification of existing Product to remedy a non
conformance to Seller's Specifications required to correct design defects
of a type that result in electrical or mechanical inoperative conditions,
extremely unsatisfactory operating conditions, or which is recommended to
enhance safety;
"Class B Change" means a change that provides Product enhancements
resulting in new features or improved service capabilities;
"Customer Price List" means Seller's published "Price Reference Guide" or
other price notification releases furnished by Seller for the purpose of
communicating Seller's list pricing or pricing related information to
customers of Seller; however, this does not include firm price quotations;
"Designated Processor" means the Product for which the licenses to use
Licensed Materials are initially granted;
"Effective Date" shall mean May 1, 1998;
"Final Acceptance" means the process set forth in Section 4.2 pursuant to
which Customer accepts Seller's installation of its Products or Licensed
Materials;
"Firmware" means a combination of (i) hardware and (ii) Software
represented by a pattern of bits contained in such hardware;
"Fit" means physical size or mounting arrangement (e.g., electrical or
mechanical connections);
"Form" means physical shape;
"Function" means product features;
"Force Majeure" means fires, strikes, riots, embargoes, explosions,
earthquakes, floods, wars, water, the elements, labor disputes, government
requirements, civil or military authorities, acts of God or by the public
enemy, inability (affecting Seller's industry as a whole) to secure raw
materials or transportation facilities, acts or omissions of carriers or
suppliers, or other causes beyond a party's control whether or not similar
to the foregoing;
"Hazardous Material" means material designated as a "hazardous chemical
substance or mixture" by the Administrator, pursuant to Section 6 of the
Toxic Substance Control Act, a "hazardous material" as defined in the
Hazardous Materials Transportation Act (49 U.S.C. 1801, et seq.), or a
"hazardous substance" as defined in the Occupational Safety and Health Act
Hazard Communication Standard (29 CFR 1910.1200);
"In Revenue Service" means use of a Product or any part thereof for
commercial service (exclusive of operations for purposes of conducting
Acceptance Tests), whether or not revenue is actually being generated;
"Information" means all documentation and technical and business
information in whatever form recorded, which a party may furnish under, or
has furnished in contemplation of, this Agreement;
"Initial System" means the PCS Systems ordered pursuant to the terms of
this Agreement for each Market that is scheduled for optimization prior to
the Acceptance jointly established by the Parties, reduced by the amount of
any Products, for each date(s) and Licensed Materials, which due to fault
of the Customer cannot be properly installed, integrated and optimized
prior to System Acceptance without additional expense to Seller;
"Licensed Area" means an area for which the Federal Communications
Commission ("FCC") has granted a permit to construct a Personal
Communication Services System;
"Licensed Materials" means the Software and Related Documentation for which
licenses are granted by Seller under this Agreement; no Source Code
versions of Software are included in Licensed Materials;
"Market" means a geographic area in which Customer is licensed to provide
PCS services, consisting of at least an initial MSC (access manager and
5ESS switch) and a minimum of 50 TDMA PCS mini-cells.
"Material Service Impact" means an operating characteristic of Seller's
Products or Licensed Materials having a materially adverse impact on
Customers ability to network, administer, operate or maintain its Network
Wireless System obtained under this Agreement, to render xxxxxxxx to
Customer's subscribers, or to continue to furnish or to offer to such
subscribers service functionalities and features;
"Operating Affiliates" means a subsidiary of TeleCorp PCS, Inc. which is
authorized to operate the FCC PCS Licenses in any of the Markets listed in
Section 1.4 or any additional Markets awarded to Seller pursuant to the
provisions of this contract;
"Optional Software Features" means software features for PCS Products
available to Seller's customers on an optional, separate fee basis;
"PCS System" means Personal Communications Services System, which would
consist of, the minimally necessary Products, Licensed Materials, Services,
and integration thereof necessary to provide PCS within any definable
geographic area;
"Product" means PCS TDMA and/or Cellular TDMA and future generation
wireless Products (including hardware which is part of firmware) systems,
equipment, and parts thereof, but the term does not mean Software whether
or not such Software is part of Firmware;
"Product Manufacturing Information" means manufacturing drawings and
specifications of raw materials and components, including part
manufacturing drawings and specifications covering special tooling and the
operation thereof, and a detailed list of all commercially available parts
and components purchased by Seller on the open market disclosing the part
number, name and location of the supplier, and price lists;
"Provisional Acceptance" means that the Customer acknowledges that the
Products Licensed Material and installation services have been performed as
required and accepts them pending satisfactory completion of system
optimization;
"Related Documentation" means materials useful in connection with Software,
such as, but not limited to, flow charts, logic diagrams, program
descriptions, and specifications. No Source Code versions of Software are
included in Related Documentation;
"Repair Parts" means new, remanufactured, reconditioned, refurbished, or
functionally equivalent parts for the maintenance, replacement, and repair
of Products sold pursuant to this Agreement;
"Seller's Manufactured Product" means a Product manu-factured by Seller or
purchased by it pursuant to its procurement specifications (e.g., KS or
AT);
"Seller's Standard Charges" means Seller's applicable rates and charges
then in effect for labor and materials as determined from Seller's Customer
Price List, less any applicable discounts;
"Services" means the performance of work for the Customer and includes but
is not limited to: (1) engineering Services such as preparation of
equipment specifications, preparation and updating of office records, and
preparation of a summary of material not specifically itemized in the
Order; (2) installation Services such as installation equipment removal,
and cable mining; and (3) other Services
such as maintenance and repair. Services do not include Turnkey Services;
"Software" means a computer program consisting of a set of logical
instructions and tables of information which guide the functioning of a
processor; such program may be contained in any medium whatsoever,
including hardware containing a pattern of bits representing such program,
but the term "Software" does not mean or include such medium;
"Source Code" means any version of Software incorporating high-level or
assembly language that generally is not directly executable by a processor.
Except as may be expressly provided, this Agreement does not require Seller
to furnish any Source Code;
"Specifications" means the specifications for Products and/or Licensed
Materials furnished by Seller to Customer as set forth in this Agreement or
its Attachments;
"Start Date" means, the date upon which Seller has received Customer's
written notice that Customer has performed all Customer responsibilities
and furnished all necessary items required prior to Seller's commencement
of installation of the Initial System;
"Subsidiary" of a company means a corporation, the shares or other
securities holding a majority of the votes for election of directors which
are now or hereafter owned or controlled by such company either directly or
indirectly; but any such corporation shall be deemed to be a Subsidiary of
such company only as long as such ownership or control exists;
"System Acceptance" means Customer's acceptance of the Initial System in
each of the Markets pursuant to the terms of Attachment D;
"Territory" means the 00 xxxxxx xx xxx Xxxxxx Xxxxxx plus the District of
Columbia and the territories and possessions of the United States;
"Turnkey Item" means a good or product or a partial assembly of goods or
products furnished and, perhaps, installed by Seller as part of a Turnkey
Service but not furnished by Seller pursuant to this Agreement. A Turnkey
Item is not a Vendor Item or a Product as described in this Agreement;
"Turnkey Services" means items and activities normally the responsibility
of the Customer under this Agreement, which may include, but shall not be
limited to, project management, field coordination, construction and system
testing. Turnkey Services do not include, and are separate from, Seller's
normal engineering and installation Services;
"Use" with respect to Licensed Materials means loading the Licensed
Materials, or any portion thereof, into a processor for execution of the
instructions and tables contained in such Licensed Materials;
"Vendor Item" means a Product or partial assembly of Products furnished by
Seller but neither manufactured by Seller nor purchased by Seller pursuant
to its procurement specifications. A Vendor Item is not a Turnkey Item;
and
"Warranty Period" means the period of time listed in the respective
WARRANTY clauses which, unless otherwise stated, commences on the date of
shipment, or if installed by Seller on Acceptance by Customer or thirty
(30) days from the date Seller submits its notice of completion of its
installation whichever is sooner, and for Services, commences on the date
the Service is completed.
1.2 TERM OF AGREEMENT
1.2.1 This Agreement shall be effective on the Effective Date and, except
as otherwise provided herein, shall continue in effect for a period of [_] [_]
[_] years. Within sixty (60) days of the scheduled expiration date of this
Agreement, the parties shall meet to discuss extension of this Agreement for
some additional length of time. An obligatory condition of such extension shall
be that the Products, Licensed Materials and Annual Maintenance Fees, as
specified in Attachment A of this Agreement, shall not exceed the amount
specified in Seller's then effective Customer Price List less the applicable
discounts set forth in Section 1.10. The modification or termination of this
Agreement shall not affect the rights or obligations of either party under any
order accepted by Seller before the effective date of the modification or
termination.
1.2.2 Customer's obligations under this Agreement shall be contingent on
(i) a final closing under the terms of the Securities Purchase Agreement dated
January 23, 1998 among Customer, AT&T Wireless and certain other parties for the
joint development of TDMA PCS Networks serving portions of the Boston,
Little Rock, Louisville, St. Louis, Houston, Memphis, and New Orleans major
trading areas (MTAs); and (ii) the execution of the Financing Agreements
attached hereto as Attachment B and consummation of the transactions
contemplated thereby.
1.2.3 The Parties agree that Customer may wish to purchase certain
Products from Seller in advance of the satisfaction of the contingencies set
forth in Section 1.2.2 being completed. Such purchases shall be subject to the
terms and conditions contained in this Agreement and not exceed a total of forty
million dollars.
1.2.4 Should, despite the Parties best efforts, the contingencies set
forth above not be met on or before September 30, 1998, this Agreement shall be
terminated by either party giving notice in writing and the Parties shall have
no further obligation to each other, except Customer may either retain the
purchased Products at the prices set forth in this Agreement or return the
purchased Products to the Seller and receive a full refund of any amounts
actually paid to Seller and shall not be responsible for the Deferred Payments
under Section 1.12(d).
1.3 SCOPE
During the term of this Agreement, Seller agrees to sell (or, with respect
to licensed Materials, license) to Customer or its Operating Affiliates for the
use and benefit of Customer or its Operating Affiliates and not for resale,
Products (with associated Licensed Materials, licenses) and associated Services,
as and to the extent ordered by Customer or its Operating Affiliates pursuant to
orders issued by such entity and accepted by Seller hereunder. Seller agrees
that it will offer to Customer or its Operating Affiliates all items, products
or services generally offered or made available to other providers of
telecommunications services, but nothing herein shall be deemed to require
Seller to disaggregate into subassemblies, components or other parts any such
items, products or services, which Seller does not disaggregate for others.
The terms and conditions of this Agreement shall apply to all orders for
Products and Licensed Materials and Services listed in Customer Price Lists and
for related Services placed by Customer or its Operating Affiliates. Unless
otherwise specifically agreed in writing by Seller, Seller's provision of any
other item, product or service not listed in the then current Customer Price
List is not subject to the terms and conditions of this Agreement, but to a
separate written
agreement of the parties or, if none, to Seller's standard term and conditions
for such item, product or service. Seller agrees that Seller will maintain and
from time to time furnish to Customer a copy of such Customer Price Lists, which
shall contain all of Seller's currently available commercial offerings of
Seller's PCS and PCS related telecommunications systems.
Provided that Customer is not undertaking the payment obligations of an
Affiliate, Customer will have a reasonable opportunity to approve any Affiliates
seeking to purchase under this Agreement, such approval not to be unreasonably
withheld, based upon (i) reasonable credit criteria within the context of the
PCS industry, (ii) whether or not such Affiliate has in the past materially
breached agreements with Seller, (iii) whether or not the Affiliate (or any of
its Owners or Partners) is a direct competitor of Seller in the wireless
infrastructure manufacturing business, and (iv) whether or not the Affiliate is
otherwise engaged with Seller in an agreement for the purchase and/or supply of
PCS TDMA wireless technology.
1.4 MINIMUM MARKET COMMITMENT
With respect to each of the following Markets, if Customer, in its sole
discretion, elects to build out an Initial System in such Market, Seller agrees
to engineer, furnish and install and Customer agrees to purchase the PCS
Products, Licensed Materials and Services which are sufficient to build out the
Initial System for such Markets.
Boston
New Orleans
Little Rock
Memphis
St. Louis
Notwithstanding the foregoing, Customer may, in its sole discretion,
substitute a new Market of similar size for any of the above Markets.
1.5 ADDITIONAL PURCHASES
In the event that Customer or its Affiliates, wish to obtain additional
Products, Licensed Materials and Services to expand the coverage of or add
features to any Initial System constructed or initiated under this Agreement ,
orders for such additional items received by Seller during the term of this
Agreement shall be received and accepted subject to the terms and conditions
hereof.
In addition, if Customer or its Affiliates, at their option, award Seller any
additional Markets, the terms and conditions of this Agreement shall apply to
the purchase of Products, Licensed Materials and Software for such additional
Markets
1.6 PLANNING INFORMATION
Upon Seller's request, and to the extent reasonable, feasible, and
available, Customer will provide to Seller forecasts of Customer's annual
Product, Licensed Materials, and Services needs. Customer shall provide to
Seller a forecast of the number of base stations, growth frames, voice channels,
CSU's, Power Cabinets, and 5ESS Switches, among other necessary components,
needed for the PCS System. This forecast is expected to be accurate within +/-
25%.
Except for the initial order, nine (9) months prior to requested ship date,
Customer shall provide to Seller an updated forecast of the quantity of Products
necessary for the PCS System as indicated above. This forecast is expected to be
accurate within +/- 25%. If the accuracy of this forecast deviates from the
stated parameters, Seller will not be penalized for any resulting delays for
quantities above the forecast.
There shall be a twelve (12) week interval between order and ship date for
switching equipment orders for each Initial System, unless the parties mutually
agree to a shorter interval. For all other switch orders, no less than twenty
(20) weeks prior to the requested ship date for switching equipment, Customer
shall provide to Seller a final forecast of the number of units of switch
equipment required for the PCS System as indicated above. No less than four (4)
weeks prior to the requested ship date for base stations, Customer shall provide
to Seller a final forecast of the number of base station units required for the
PCS System as indicated above. The final forecasts shall be submitted as orders
under clauses 1.7 and 1.8. Customer may postpone orders for base stations
without penalty up to one (1) week prior to the requested ship date, however
Seller may elect to ship base stations in accordance with Section 1.17. Customer
may postpone orders for switching equipment without penalty up to three weeks
prior to the requested ship date provided that the equipment ships within 4
weeks of the original requested ship date.
Any postponement of an order by Customer pursuant to this Section 1.6 shall
not relieve Customer of its purchase obligations for the Initial Systems set
forth in Section 1.4 and
Attachment A and the New Market Incentive purchase commitment set forth in
Section 1.10.1.1.10.
1.7 ORDERS
All orders submitted by Customer shall be deemed to incorporate and be
subject to the terms and conditions of this Agreement unless otherwise agreed by
both parties in writing.
All orders, including electronic orders, shall contain the information
necessary for Seller to fulfill the order.
All schedules and requested dates are subject to Seller's concurrence;
provided if orders are made within the agreed to lead times Seller shall not
withhold its concurrence to the requested dates.
No provision or data on any order or contained in any documents attached to
or referenced in any order, any subordinate document (such as shipping
releases), shall be binding, except data necessary for Seller to fill the order.
All such other data and provisions are hereby rejected. Electronic orders shall
be binding on Customer notwithstanding the absence of a signature, so long as
such orders have been verified as valid purchase orders by Customer's technical
department and finance department in accordance with procedures to be mutually
agreed upon by the parties.
1.8 ORDER ACCEPTANCE
All orders are subject to acceptance by Seller. Seller shall acknowledge
the date of order receipt either in writing or electronic data interface format
within 72 hours. The acknowledged date of order receipt is the price effective
date for purposes of this Agreement.
Seller agrees to deliver and install Products and Licensed Materials and
perform Services in accordance with Seller's standard delivery and installation
schedules being quoted at the time such order is placed, or the delivery and
installation schedules otherwise agreed pursuant to Section 1.6.
If Customer submits an order requesting a delivery or completion interval
less than the interval listed in the applicable Customer Price List, or as set
forth in Section 1.6, Seller will accept such order only for its standard
interval. Seller will, however, attempt to meet Customer's requested interval
and provide confirmation or denial of the requested
guidelines for accruals and reimbursements of qualifying promotional
activities and the procedures and documentation necessary for such
reimbursements.
b. Without limiting the foregoing or anything in this Agreement, Customer
expressly agrees to submit all proposed usage of Seller's Indicia (as
defined under "USE OF MARKS" below) for approval by the Seller Co-
Marketing Program Office on such forms as may be developed by Seller
from time to time, and shall not use such Indicia unless and until the
Seller Co-Marketing Program Office grants such approval. Seller shall
either accept or reject Customer's proposed usage of Seller's Indicia
within three (3) business days of acknowledged receipt of Customer's
request. If no response is rendered within this time period, the
proposed usage shall be deemed approved.
c. Without limiting the foregoing or anything in this Agreement, Customer
acknowledges it has no ownership or other interest in the Indicia and
shall make no claim to such Indicia.
d. Without limiting the foregoing or anything in this Agreement, Customer
expressly agrees that accruals shall be only for qualifying purchases
of specific Products or Software for its own use and not for resale.
e. Without limiting the foregoing or anything in this Agreement, Customer
expressly agrees to submit requests for reimbursement for qualifying
promotions within ninety days after deployment of the subject
promotional activity and to utilize reimbursement funds within one
year of the time the accrual is reported to Customer.
USE OF MARKS
a. The use of Seller's tradenames, trademarks, trade devices, logos,
codes, Co-Marketing Brand and logo or other symbols (collectively
"Indicia") shall be solely for the purpose of and in the manner
permitted by the Program Documentation. Seller hereby grants Customer
permission to use Indicia in Customer's marketing and advertising of,
and in Customer's publicity relating to, the Products and Agreements
identified in Program Documentation, PROVIDED such use conforms to
Seller
standards and guidelines contained in the Program Documentation which
Seller may furnish from time to time. Without limiting the terms of
such Program Documentation, the following shall also apply: (1)
Customer may not conduct business under Seller's name or logo; (2)
Customer may not use any of Seller's Indicia or variations thereof to
identify Customer or Customer's products or services except as
specifically permitted by the Seller Co-Marketing Program Office
identified in the Program Documentation; and (3) Customer may not use
any of Seller's Indicia in a manner that is likely to confuse the
public concerning the relationship of the parties. Customer's use of
Indicia shall inure to the benefit of Seller and shall not invest in
Customer any rights in or to the Indicia. All uses of Indicia by
Customer shall be subject to prepublication or pre-use review and
written approval by Seller. If, in Seller's judgment, any use of
Indicia by Customer is deemed detrimental to the Indicia or Seller's
reputation, or is deemed otherwise undesirable, Seller may withdraw
such permission without liability as a result thereof.
b. Customer agrees that it has no exclusive right to use of Indicia as
defined herein in any Market or for any Product identified herein.
Seller expressly reserves the right to contract with others to
promote, market, sell and/or install Products, to use the Indicia and
to permit others to engage in such activities at any time and in any
place.
1.12 INVOICES AND TERMS OF PAYMENT
a. For the Products and Licensed Materials (including transportation
charges and taxes, if applicable), comprising the Initial System for a
Market as set forth on Attachment A, Customer shall be invoiced as
follows:
a) 85% of the purchase price on delivery or as soon thereafter as
practicable
b) 10% of the purchase price on System Acceptance of the Initial
System
c) 5% of the purchase price on completion of all punch list items
For orders submitted after Acceptance of an Initial System, ninety
percent (90%) of the purchase price (including transportation and
taxes, if applicable) will be invoiced on delivery, or as soon
thereafter as possible. The remaining ten percent (10%) shall be
invoiced on Final Acceptance of installation on a unit by unit basis.
Invoicing for the four million ($4,000,000) dollar Optional Feature
RTU per MSC shall occur on delivery, and payment for said invoices
shall be due thirty (30) days after Acceptance of the Initial System.
In every case, engineering will be billed upon main shipment of
Products and installation will be billed as performed or as soon
thereafter as practical.
b. Except as set forth in paragraph (d) below, Customer shall pay these
invoiced amounts, less any disputed amounts, within thirty (30) days
from the date of Seller's invoice. Delinquent payments are subject to
a late payment charge at the rate of one and one-half percent (1-1/2%)
per month, or portion thereof, of the amount due (but not to exceed
the maximum lawful rate). Any disputed items which are determined to
be validly billed are due for payment based upon the original invoice
date and will be subject to a retroactive late payment charge based
upon the original invoice date. Customer shall notify Seller of any
disputed invoice amounts within thirty (30) days from the date of the
invoice. Seller may apply any credit which remains outstanding.
c. Customer shall pay the invoiced amounts due on completion of all punch
list items, less any disputed amounts, within ten (10) days from the
date of Seller's invoice. No late payment charges will accrue until
after thirty (30) days of the date of Seller's invoice.
d. Notwithstanding anything herein to the contrary, Customer may defer
payment (the "Deferred Payments") on all invoices for Customer
Products, Licensed Materials and Services purchased by Customer or its
Operating Affiliates for which payment would be due pursuant to
subsections (a) and (b) above until the later of (i) September 30,
1998, or (ii) the initial closing of Customer's senior credit
facility. The
amounts owed to Seller for Deferred Payments shall be payable in full,
along with associated carrying costs (prime plus 1.9%), upon the
earlier of (i) September 30, 1998, or (ii) the initial closing of the
senior credit facility of the Customer. The aggregate amount of all
outstanding invoices subject to the Deferred Payment arrangement shall
at no time be greater than $40 million, exclusive of associated
carrying costs. If such outstanding invoice amount exceeds $40
million, the Customer shall immediately pay invoices sufficient to
reduce the balance below $40 million, exclusive of associated carrying
costs. Customer shall also pay invoices in accordance with Sections 1.
12(a) and 1. 12(b) if using the Deferred Payment option would cause
the outstanding invoice amount to exceed $40 million.
1.13 PURCHASE MONEY SECURITY INTEREST
a. Seller reserves and Customer agrees that Seller shall have a purchase
money security interest in all Products and Licensed Materials
supplied to Customer by Seller under this Agreement until any and all
Deferred Payments due Seller under this Agreement are paid in full.
Seller shall have the right, at anytime and without notice to customer
to file in any state or local jurisdiction such financing statements
(e.g UCC-1 financing statements, as Seller deems necessary to perfect
its purchase money security interest hereunder. Upon request, by
Seller, Customer hereby agrees to execute all documents necessary to
secure Seller's purchase money security interest including without
limitation, UCC -1 or such other documents Seller deems reasonably
necessary to evidence its security interest. Notwithstanding the
foregoing obligation of Customer to execute, Customer hereby appoints
Seller as its attorney-in-fact for purpose of executing and filing
such financing statements and such other documents prepared by Seller
or its designated agent for purposes of perfecting Seller's security
interest hereunder.
b. Seller shall provide Customer promptly following any such filing with
a copy of all such Financing Statements together with a listing of a
filing number and location sufficient to enable Customer's lenders to
arrange for termination of such Financing
Statements upon closing Customer's senior credit facility.
c. In addition to any other remedy available to Seller as provided herein
for any failure of Customer to pay the purchase price, by common law
and by statute, Seller may exercise its right to reclaim all Products
and Licensed Materials sold to Customer pursuant to UCC-202 or such
other applicable provision as it may exist from state to state, upon
discovery of Customer insolvency, provided Seller demands in writing
reclamation of such goods before ten (10) days after receipt of such
goods by Customer, or if such ten (10) days period expires after the
commencement of a bankruptcy case, before twenty (20) days after
receipt of such goods by the Customer.
1.14 MOST FAVORED CUSTOMER
At any time during the Term of this Agreement, Customer will receive
Products, Licensed Materials and Services at prices and on payment terms and all
other contract terms (including financing) no less favorable to the Customer
when viewed collectively than those offered or made available by the Seller to
any other AT&T Wireless Affiliate within the United States who are involved in
transactions of similar or lesser volumes. For the purposes of this section, the
other AT&T Wireless Affiliates, shall consist of Mercury PCS, Triton, Wireless
One, Americall and Triad.
To the extent Seller offers or provides more favorable contract terms to
another AT&T Wireless Affiliate (the "Offer"), pursuant to this section, it
shall commencing on the effective date of such Offer prospectively adjust its
prices, payment terms and/or other contract terms to Customer so as to implement
the more favorable contract terms contained in the Offer. In addition, prior to
System Acceptance in each of the first five Markets, Seller shall retroactively
apply the more favorable offer term for all Customer orders issued during the
ninety (90) day period prior to the effective date of the Offer.
1.15 DELIVERY AND INSTALLATION SCHEDULE
Customer shall notify Seller of those PCS site(s), ready for installation
of Product and that Customer's responsibilities referred to in the
Responsibility Matrix and Article IV relating to such sites have been performed
or furnished in accordance with Attachment F or, if Attachment F is not
applicable, by the
date mutually agreed to by the parties prior to order acceptance. Seller shall
have access to such sites on and from the date of Seller's receipt of such
notification (the "Start Date"). If Seller is notified by Customer that a PCS
site is ready and finds upon arrival that the site does not meet the criteria
indicated on the Responsibility Matrix and in Article IV (an "Erroneous
Dispatch"), Customer shall pay an additional $350 for each Erroneous Dispatch.
If Seller incurs extraordinary costs due to an Erroneous Dispatch, Customer
agrees to negotiate in good faith appropriate compensation for such
extraordinary costs.
Additionally, except to the extent covered by Attachment F, the parties
agree to develop, by mutual agreement, delivery and installation schedules under
which Seller shall complete its obligations as required under the Responsibility
Matrix, and/or any subsequent order, and submit notices of completion to
Customer on or before the Installation Complete date.
1.16 SYSTEM LOCK DOWN; COMPLETION DELAY
----------------------------------
a) System Lock Down For Each MTA listed in Section 1.4. On the
---------------------------------------------------
"System Lock Down" as reasonably determined by Customer and to be
inserted on the Milestone Timeline attached as Exhibit F, the
date (the "System Lock Down Date) of which shall be sixty (60)
days prior to Customer's anticipated date of System Acceptance
(the date falling sixty (60) days after the System Lock Down Date
is the "Guaranteed System Acceptance Date"), the Seller shall
provide the Customer with a final revised RF Engineering Plot and
the Customer shall use its best efforts to deliver to Seller one-
hundred percent (100%) of the BTS sites constituting the Initial
System. Construction and Site Acceptance check-off (as defined by
the Site Acceptance checklist) of at least sixty-five percent
(65%) of the BTS sites included in such RF Engineering Plot shall
have been completed on the System Lock Down Date. During the
thirty (30) day period prior to the Guaranteed System Acceptance
Date, Customer cannot include more than fifteen (15%) percent of
the BTS sites in the revised RF Engineering Plot for each Initial
System. If at this time key missing cells from the RF Engineering
Plot cause the inability of Seller to meet System Acceptance
metrics as defined in Attachment D, then Seller
and Customer shall together redefine any affected drive routes so
as to exclude these missing cells from the Initial System
Acceptance metrics. Any BTS sites constructed in the fifteen (15)
day period prior to the Guaranteed System Acceptance Date shall
not be included as part of the System Acceptance process set
forth in Attachment D. However, Seller will use its best efforts
to install and integrate these sites prior to the Guaranteed
System Acceptance Date. On the System Lock Down Date, or as soon
as reasonably practicable, the Seller shall begin to perform
System Acceptance Tests and Systemwide RF optimization services
in accordance with Exhibit D attached hereto.
b) Completion Delay. For each day that the Initial System in a
----------------
Market fails to achieve System Acceptance due to the sole fault
of Seller on or before the Guaranteed System Acceptance Date,
Seller will pay to Customer an amount equal to .35 % (thirty-five
hundredths of one percent) of the aggregate purchases ordered for
such market through the Guaranteed System Acceptance Date for
each day from the Guaranteed System Acceptance Date until the
date when System Acceptance occurs (the "Late Acceptance
Payment"). The amount due to Customer under the provisions of
this subsection 1.16(b) shall be credited against any outstanding
amounts due Seller for the affected Market up to a maximum of the
unbilled amount to be invoiced upon System Acceptance of the
Initial System and upon completion of all punch list items.
1.17 TRANSPORTATION
Seller's prices for Products and Licensed Materials, as specified in
Section 1.10, do not include freight charges or related transportation Services
including hauling and hoisting, or charges therefor, unless expressly stated in
writing by Seller to the contrary. At Customer's request, Seller, in accordance
with its normal practices, will arrange for transportation for such items to the
site designated by Customer. In such cases, Seller will prepay transportation,
if appropriate, and invoice transportation charges without xxxx-up.
If Customer elects to route Products and/or Licensed Materials or to
arrange for transportation, Seller will provide related services subject to a
separate fee.
Premium transportation will only be used with Customer's concurrence.
1.18 PACKING, MARKING, AND SHIPPING
Seller shall, at no additional charge, pack and xxxx shipping containers in
accordance with its standard practices for domestic shipments. Where in order
to meet Customer's requests, Seller packs and/or is required to xxxx shipping
cartons in accordance with Customer's specifications, Seller shall invoice
Customer additional charges for such packing and/or marking.
Seller shall:
a) Enclose a packing memorandum with each shipment and, if the
shipment contains more than one package, identify the package
containing the memorandum; and
b) Xxxx Products as practicable for identification in accordance
with Seller's marking specifications (e.g., model/serial number
and month and year of manufacture).
Partial shipments under an order may be made by Seller and separately
invoiced.
1.19 TITLE AND RISK OF LOSS
Title (except as provided in the clause USE OF INFORMATION and in Article
III) and risk of loss to a Product, Licensed Material, or other item furnished
to Customer under this Agreement shall pass to Customer upon the delivery to the
Customer's specified location. Delivery of an item to its final destination by
Seller shall be deemed complete at such time as all transportation, interim
warehousing, hauling and hoisting required to be performed by Seller or its
agents under the order for the item have been completed Notwithstanding the
above, if sooner, title and risk of loss to the item shall pass to Customer at
the point at which, at Customer's request, Seller or Seller's supplier or agent
turns over possession of the item to Customer, Customer's employee, Customer's
designated carrier, warehouser or hoister, or other Customer's agent.
If Customer requests deferral of a base station order after submission of
the final purchase order required in Section 1.6, Seller shall have the right to
deliver the Product to its warehouse. Seller shall pay for the cost of
transportation to the warehouse and any warehouse costs. Customer shall pay the
costs of transportation from the warehouse to its specified location. If
Customer is unable to have the Products delivered to its location within thirty
(30) days after delivery to the warehouse, title and risk of loss shall pass to
Customer on the thirty-first day and Seller shall issue an invoice pursuant to
the terms of Section 1.12.
If Customer requests deferral of a switch order less than three (3) weeks
prior to the scheduled shipment date set forth in the final purchase order
required in Section 1.6, Seller shall have the right to deliver the Product to
its warehouse. Seller shall pay for the cost of transportation to the warehouse
and any warehouse costs. Customer shall pay the costs of transportation from the
warehouse to its specified location. If Customer is unable to have the Products
delivered to its location within thirty (30) days after delivery to the
warehouse, title and risk of loss shall pass to Customer on the thirty-first day
and Seller shall issue an invoice pursuant to the terms of Section 1.12.
Customer shall notify Seller and Seller shall notify Customer promptly of
any claim with respect to loss which occurs while the other party has the risk
of loss and shall cooperate in every reasonable way to facilitate the settlement
of any claim.
Nothing herein shall, during the period Seller has the risk of loss to an
item, relieve Customer of responsibility for loss to the item resulting from the
acts or omissions of Customer, Customer's employees or Customer's agents.
Nothing herein shall, during the period Customer has the risk of loss to an
item, relieve Seller of responsibility for loss to the item resulting from the
acts or omissions of Seller, Seller's employees or Seller's agents.
1.20 COMPLIANCE WITH LAWS
Performance under this Agreement shall be subject to all applicable laws,
orders, and regulations of federal, state, and local governmental entities. Both
parties shall obtain all necessary governmental approvals to perform their
respective obligations hereunder.
1.21 TAXES
Customer shall be liable for and shall reimburse Seller for all taxes and
related charges, however designated, (excluding taxes on Seller's net income or
gross receipts) imposed upon or arising from the provision of Services, or the
transfer, sale, license, or use of Products, Licensed Materials, or other items
provided by Seller. Taxes reimbursable under this paragraph shall be separately
listed on the invoice.
Seller shall not collect the otherwise applicable tax if the front of the
order indicates that the purchase is exempt from Seller's collection of such tax
and a valid tax exemption certificate is furnished by Customer to Seller.
1.22 TRAINING
Seller will make available Seller's standard training for Customer's
personnel in the planning for, operation and maintenance of Products and
Software furnished hereunder in accordance with Seller's published prices at
Seller's training locations. Additionally, Seller shall provide to Customer a
credit of two hundred thousand dollars ($200,000). Vendor warrants that this
credit is sufficient to provide training for Customer to support its operations
in the initial Markets listed in Section 1.4.
1.23 TERMINATION FOR CONVENIENCE
Customer may, upon written notice to Seller, terminate any order or portion
thereof, except with respect to any order for Products or Licensed Materials
that have already been shipped and Services that have already been performed.
For those Products and Licensed Materials not shipped but considered stock
items, Customer agrees that it will pay Seller an order restocking fee equal to
five percent (5%) of the price or license fee for such items.
For those Products and Licensed Materials not shipped and considered
customized or non-stock items, Customer agrees to pay a fee based upon Seller's
reasonably incurred expenses (after adjustment for recoveries and/or salvage
value, if any), including associated general and administrative expenses plus a
reasonable profit.
Customer may issue "holds" on orders or suspend performance under this
Agreement, in whole or in part, with Seller's prior
written consent and upon terms that will compensate Seller for any loss,
damages, or expenses.
1.24 CANCELLATION FOR BREACH
In the event Seller or Customer is in material breach or default of this
Agreement or any order placed hereunder and such breach or default continues for
a period of sixty (60) days after the receipt of written notice (and such
additional time as may be agreed upon by the parties), then Seller or Customer
shall have the right to cancel that part of any order affected by the breach or
default without any charge, obligation or liability, except for those items
already fully discharged. Both parties shall cooperate in every reasonable way
to facilitate the remedy of a breach or default hereunder within such sixty (60)
day period and such sixty (60) day period shall be extended for an additional
period of up to sixty (60) days if the breach or default could not reasonably
have been cured in the first sixty (60) days and the breaching party is
diligently pursuing such breach or default.
1.25 PATENTS, TRADEMARKS AND COPYRIGHTS
In the event of any claim, action, proceeding or suit by a third party
against Customer or its Affiliates alleging an infringement of any United States
patent, United States copyright, or United States trademark, or a violation in
the United States of any trade secret, intellectual property right or
proprietary rights by reason of the use, in accordance with Seller's or other
applicable specifications, of any Product or Licensed Material or Indicia
furnished by Seller to Customer or its Operating Affiliates under this
Agreement, Seller, at its expense, will indemnify, hold harmless and defend
Customer, subject to the conditions and exceptions stated below. Seller will
reimburse Customer for any cost, expense or attorney's fee, incurred at Seller's
written request or authorization, and will indemnify Customer against any
liability assessed against Customer by final judgment on account of such
infringement or violation arising out of such use.
If Customer's use shall be enjoined or in Seller's opinion is likely to be
enjoined, Seller will, at its expense and at its option without causing a
Material Service Impact to Customer or its Operating Affiliates, either (1)
replace the enjoined Product or Licensed Material furnished pursuant to this
Agreement with a suitable substitute (which is equivalent in Form, Fit and
Function) free of any infringement, (2) modify it so that it will be free of the
infringement, so long as such
modification does not affect Form, Fit or Function; or (3) procure for Customer
a license or other right to use it. If none of the foregoing options is
practical, Seller will remove the enjoined Product or Licensed Material and
refund to Customer any amounts paid to Seller less a reasonable charge for any
actual period of use by Customer, provided, however, if such removal will cause
a Material Service Impact, Customer's consent shall be required prior to any
such removal.
Customer shall give Seller prompt written notice of all such claims,
actions, proceedings or suits alleging infringement or violation and Seller
shall have full and complete authority to assume the sole defense thereof,
including appeals, and to settle same. Customer shall, upon Seller's reasonable
request and at Seller's expense, furnish all information and assistance
available to Customer and cooperate in every reasonable way to facilitate the
defense and/or settlement of any such claim, action, proceeding or suit.
No undertaking of Seller under this clause shall extend to any such alleged
infringement or violation to the extent that it: (1) arises from adherence to
design modifications, specifications, drawings, or written instructions which
Seller is directed by Customer to follow, but only if such alleged infringement
or violation does not reside in corresponding commercial Product or Licensed
Material of Seller's design or selection; or (2) arises from adherence to
instructions to apply Customer's trademark, trade name, or other company
identification; or (3) resides in a Product or Licensed Material which is not of
Seller's origin and which is furnished by Customer to Seller for use under this
Agreement; or (4) relates to uses of Products or Licensed Materials provided by
Seller in combinations with other Products or Licensed Materials, furnished by
others, which combination was not installed, recommended or otherwise approved
by Seller. In the foregoing cases numbered (1) through (4), Customer will defend
and save Seller harmless, subject to the same terms and conditions and
exceptions stated above with respect to the Seller's rights and obligations
under this clause.
The liability of Seller and Customer with respect to any and all claims,
actions, proceedings, or suits by third parties alleging infringement of
patents, trademarks, or copyrights or violation of trade secrets, intellectual
property rights or proprietary rights because of, or in connection with, any
items furnished pursuant to this Agreement shall be limited to the specific
undertakings contained in this clause.
1.26 USE OF INFORMATION
All Information in whatever form recorded which is furnished hereunder or
has been furnished in contemplation hereof, shall remain the property of the
furnishing party. The furnishing party grants the receiving party the right to
use such Information only as follows. Such Information (1) shall not be
reproduced or copied, in whole or part, except for use as authorized in this
Agreement; and (2) shall, together with any full or partial copies thereof, be
returned or destroyed when no longer needed. Moreover, when Seller is the
receiving party, Seller shall use such Information only for the purpose of
performing under this Agreement, and when Customer is the receiving party,
Customer shall use such Information only (1) to order, (2) to evaluate Products,
Licensed Materials or Services, or (3) to install, operate, and maintain the
particular Products or Licensed Materials for which it was originally furnished.
Unless the furnishing party consents in writing, such Information, except for
that part, if any, which is known to the receiving party free of any
confidential obligation, or which becomes generally known to the public through
acts not attributable to the receiving party, shall be held in confidence by the
receiving party. The receiving party may disclose such Information to other
persons, upon the furnishing party's prior written authorization, but solely to
perform acts which this clause expressly authorizes the receiving party to
perform itself and further provided such other person agrees in writing (a copy
of which writing will be provided to the furnishing party at its request) to the
same conditions respecting use of Information contained in this clause and to
any other reasonable conditions requested by the furnishing party.
The term "Information" as used in this clause does not include Software
(whether or not embodied in Firmware) or Related Documentation. The use of
Software and Related Documentation is governed by Article III of this Agreement.
Nothing in this Section shall preclude or prohibit a receiving party from
disclosing any Information, if such disclosure is required by law, rule or
regulation or ordered by a court or governmental agency of competent
jurisdiction, provided that such party notifies the furnishing party prior to
such disclosure and provides the furnishing party such assistance as is
reasonable in the circumstances to protect the Information from public
disclosure.
For purposes of this provision, "Information" shall mean all information
about business, technical and financial matters
(including costs, profits and plans for future development, methods of operation
and marketing concepts) and any other proprietary information relating to
Seller, Customer or its Affiliates and their respective operations, businesses
and technical and financial affairs; provided, however, the Information shall
not include information that (a) becomes generally available to the public other
than as a result of disclosure by the recipient, its Affiliates or their
representatives, (b) was available to recipient or its Affiliates on a
nonconfidential basis prior to disclosure hereunder, (c) is independently
developed by recipient or its Affiliates without use of the Information, or (d)
becomes rightfully available to recipient from a third party that is under no
obligation to maintain such information as confidential. To facilitate a
recipient's proper handling of Information, the disclosing party shall use all
reasonable efforts to xxxx as proprietary (or with another reference to indicate
confidentiality) all documentary information and to so identify prior to
disclosure all orally delivered information which the disclosing party desires
to be protected under this provision.
1.27 NOTICES
All notices under this Agreement shall be in writing (except where
otherwise stated) and shall be addressed to the addresses set forth below or to
such other address as either party may designate by notice pursuant hereto. Such
notices shall be deemed to have been given (a) when received if delivered by
hand or facsimile, (b) three business days after mailing if sent by certified
mail, return receipt requested, and (c) one day after delivery to a nationally
recognized overnight delivery service if sent by overnight mail.
Seller: Lucent Technologies Inc.
Xxxxx 000, 000 XXX Xxxxxxx
Xxxxxx, XX 00000
Attn. Xxxxx Xxxx Head
Phone: (000) 000-0000
Fax: (000) 000-0000
Copy To: Xxxx X. Xxxxxxx
Corporate Counsel
000 Xxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Customer: TeleCorp PCS, Inc.
Attn: Xxxxxx Xxxxxxxx
Executive Vice President
0000 00xx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Copy to: Rubin, Baum, Xxxxx, Constant & Xxxxxxxx
Attn: Xxxxx X. Xxxxxxx, Esq.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
1.28 RIGHT OF ACCESS
Each party shall provide the other access to its facilities reasonably
required in connection with the performance of the respective obligations under
this Agreement. No charge shall be made for such access. Reasonable prior
notification will be given when access is required. Neither party shall require
releases of any personal rights in connection with visits to its premises.
1.29 INDEPENDENT CONTRACTOR
All work performed by one party under this Agreement shall be performed as
an independent contractor and not as an agent of the other and no persons
furnished by the performing party shall be considered the employees or agents of
the other. The performing party shall be responsible for its employees'
compliance with all laws, rules, and regulations while performing work under
this Agreement.
1.30 CUSTOMER'S REMEDIES
a) Customer's exclusive remedies and the entire liability of Seller
and its affiliates and their employees and agents for any claim,
loss, damage, or expense of Customer or any other entity arising
out of this Agreement, or the use or performance of any Product,
Licensed Material, or Service, whether in an action for or
arising out of breach of contract, tort, including negligence
indemnity, or strict liability shall be as follows:
(1) For infringement-the remedy set forth in the "PATENTS,
TRADEMARKS, AND COPYRIGHTS" clause;
(2) For the performance of Products, Software and Services, or
claims that they do not conform to a warranty-the remedy set
forth in the applicable "WARRANTY" clause;
(3) For "Class A and B Changes" - the obligations set forth in
Section 2.10.
(4) For tangible property damage and personal injury caused by
negligence or willful misconduct of Seller, its employees,
subcontractors or agents-the amount of direct damage;
(5) For delays in System Acceptance-the remedy set forth in the
"Completion Delay" clause;
(6) For everything other than as set forth above--the amount of
direct damages not to exceed $2,000,000 per occurrence plus
awarded counsel fees and costs.
b) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER
CUSTOMER NOR SELLER NOR THEIR AFFILIATES AND THEIR EMPLOYEES AND
AGENTS SHALL BE LIABLE FOR INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGE OR LOST PROFITS, REVENUES OR SAVINGS ARISING OUT OF THIS
AGREEMENT, OR THE USE OR PERFORMANCE OF ANY PRODUCT, LICENSED
MATERIALS OR SERVICES, WHETHER IN AN ACTION FOR OR ARISING OUT OF
BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR STRICT
LIABILITY. THIS CLAUSE 1.30(b) SHALL SURVIVE FAILURE OF AN
EXCLUSIVE OR LIMITED REMEDY, PROVIDED THAT THIS CLAUSE SHALL NOT
BE DEEMED TO LIMIT CUSTOMER'S RIGHTS UNDER SECTION 1.25,
"PATENTS, TRADEMARKS AND COPYRIGHTS".
c) Customer shall give Seller prompt notice of any claim and Seller
shall give Customer prompt notice of any claim. Any action or
proceeding against Seller or Customer must be brought within
twenty-four (24) months after the cause of action accrues.
1.31 FORCE MAJEURE
Except with respect to Customer's obligation to make timely payments under
this Agreement, neither party shall be held responsible for any delay or failure
in performance to the extent that such delay or failure is caused by a Force
Majeure. Nothing contained herein or elsewhere shall impose any obligation on
either party to settle any labor difficulty. If the Force Majeure event prevents
performance for a period of thirty (30) days, then the party adversely effected
by the nonperformance may terminate this Agreement without recourse or
obligation, except for any benefit already received hereunder.
1.32 ASSIGNMENT
Except as provided in this clause, neither party shall assign this
Agreement or any right or interest under this Agreement, nor delegate any work
or obligation to be performed under this Agreement, (an "assignment") without
the other party's prior written consent. Any attempted assignment in
contravention of this shall be void and ineffective. Nothing shall preclude a
party from employing a mutually acceptable subcontractor, whose acceptance shall
not be unreasonably withheld by any party, in carrying out its obligations under
this Agreement. A party's use of such subcontractor shall not release the party
from its obligations under this Agreement.
Notwithstanding the foregoing, Seller has the right to assign this
Agreement and to assign its rights and delegate its duties under this Agreement,
in whole or in part, at any time and without Customer's consent, to any present
or future Subsidiary or Affiliate of Seller or to any combination of the
foregoing. Such assignment or delegation shall not release Seller from any
further obligation or liability thereon. Seller shall give Customer prompt
written notice of the assignment. Customer has the right to assign this
Agreement and to assign its rights and delegate its duties under this Agreement,
in whole or in part, at any time and without Seller's consent, to its parent or
to any present or future Subsidiary or Affiliate of Customer or its parent
providing tariffed services, provided that Seller may require changes to the
methods of payment and/or refuse to extend credit in the same amount or manner
as to Customer's assignor. Customer shall give Seller advance written notice of
the assignment promptly upon anticipation of such assignment.
In addition, Customer shall have the right to assign this Agreement, in
whole or in part, other than the provisions relating to financing and deferred
payment, to an entity to whom it sells a System to be operated by such assignee
entity in place, provided that such assignee entity is not a competitor of
Seller and has the financial resources to meet Customer's obligations under this
Agreement.
For purposes of this clause, the term "Agreement" includes this Agreement,
any subordinate contract placed under this Agreement and any order placed under
such Agreement or subordinate contract.
1.33 PUBLICITY
Each party shall submit to the other proposed copy of all Advertising
wherein the name, trademark, code, specification or service xxxx of the other
party or its affiliates is mentioned; and neither party shall publish or use
such Advertising without the other's prior written approval. Such approval shall
be granted as promptly as possible (usually within ten (10) days), and may be
withheld only for good cause.
1.34 APPLICABLE LAW
The construction and interpretation of, and the rights and obligations of
the parties pursuant to this Agreement, shall be governed by the laws of the
State of New York, except for its rules on conflicts of law.
1.35 SURVIVAL OF OBLIGATIONS
The parties' rights and obligations which, by their nature, would continue
beyond the termination, cancellation, or expiration of this Agreement, shall
survive such termination. cancellation, or expiration, including, for example,
the provisions of Sections 1.10.1.1.2, 1.26, 1.30, 2.10, 2.11 and 3.8 and the
rights of Customer to the price protections set forth in Attachment A which
extend beyond the five (5) year term of this Agreement.
1.36 SEVERABILITY
If any provision in this Agreement shall be held to be invalid or
unenforceable, the remaining portions shall remain in effect. In the event such
invalid or unenforceable provision is considered an essential element of this
Agreement, the parties shall promptly negotiate a replacement provision.
1.37 NON-WAIVER
No waiver of the terms and conditions of this Agreement, or the failure of
either party strictly to enforce any such term or condition on one or more
occasions shall be construed as a waiver of the same or of any other term or
condition of this Agreement on any other occasion.
1.38 CUSTOMER RESPONSIBILITY
Customer shall, at no charge to Seller, provide Seller with such electrical
and environmental conditions, technical information, data, technical support, or
assistance in Customer's possession as may reasonably be required by Seller to
fulfill its obligations under this Agreement, any subordinate agreement, or
order. If Customer fails to provide the required conditions, information, data,
support, or assistance, Seller shall be discharged from any such obligation.
1.39 PUBLICATION OF AGREEMENT
The parties shall keep the provisions of this Agreement and any order
submitted hereunder confidential except as reasonably necessary for performance
hereunder and except to the extent disclosure may be required by applicable
laws, regulations or the Financing Arrangements set forth on Attachment B or to
other prospective lenders or investors of Customer, in which latter case, the
party required to make such disclosure shall promptly inform the other prior to
such disclosure in sufficient time to enable such other party to make known any
objections it may have to such disclosure. The disclosing party shall take all
reasonable steps to secure a protective order or otherwise assure that the
Agreement or order will be withheld from the public record.
1.40 ARBITRATION
If a dispute arises out of or relates to this Agreement, or its breach, the
parties agree to escalate such dispute to their respective senior executives for
good faith negotiations seeking a mutually agreeable resolution. This demand for
escalation shall be in writing and notice shall be served in accordance with the
notice provision of this Agreement. If the dispute is not resolved through such
escalation within fifteen (15) days after the date of escalation, either party
shall have the right to submit the dispute to a sole mediator selected by the
parties which shall be a nonbinding mediation. If not thus resolved, it shall be
referred to a sole arbitrator, experienced in wireless
infrastructure and transactions, selected by the parties within thirty (30) days
of the mediation or, in the absence of such selection, by the American
Arbitration Association, and judgment on the award may be entered in any court
having jurisdiction. The decision of the arbitrator shall be final and binding
on both parties. The arbitrator may determine issues of arbitrability, but may
not award punitive damages or limit, expand or otherwise modify the terms of
this Agreement. All post award proceedings shall be governed by the United
States Arbitration Act. Each party shall bear the cost of preparing and
presenting its case. The cost of the arbitration, including the fees and
expenses of the arbitrator, will be shared equally by the parties unless the
award otherwise provides. The parties, their representatives, other participants
and the mediator and arbitrator shall hold the existence, content and result of
mediation and arbitration in confidence, except as such disclosure may be
necessary for the purpose of recording or otherwise acting upon the arbitrator's
award.
2. ARTICLE II
PROVISIONS APPLICABLE TO THE PURCHASE OF PRODUCTS
2.1 GENERAL
The provisions of this Article II shall be applicable to the purchase of
Products from Seller. If Software is also to be licensed for use on a purchased
Product, or if a Product is also to be engineered or installed by Seller, the
provisions of Articles III and IV shall also be applicable.
2.2 PRODUCT FEATURES COMMITMENT
2.2.1 Duplexing Upgrades
a) On or before June 30, 1998, Seller shall make available to
Customer duplexing upgrades to base stations. The duplexers shall
meet the specifications set forth in Attachment G. Thereafter,
Seller shall be responsible, at its expense, for delivery and
installation of duplexers at all sites constructed prior to their
general availability.
b) If Seller fails to make available a specification compliant
duplexer on or before July 30, 1998, Customer shall have the
option of deploying a Simplex Network in all those Markets awarded
to
Seller and which Customer has elected to construct. Seller shall
be responsible for the reasonable and actual costs incurred by
customer in retrofitting sites and changing equipment, together
with all incremental recurring costs directly caused by the
deployment of the Simplex Networks. In analyzing whether or not
to exercise this option, Customer shall take into account all
relevant factors including, but not limited to, changes in Market
launch dates, the number of cell sites deployed as of July 30,
1998, and Seller's development schedule.
2.2.2 Filter Solution
a) For an interim solution in the New Orleans, Little Rock and
Memphis Markets, (or any other Market with the same technical
constraints;), and at no additional costs to Customer, Seller
shall provide 60MHz wide transmit and receive filters, provide up
to fifteen (15) Type III stations per Market at the price of Type
I base stations and, in New Orleans only, deliver and install an
additional EDRU for each EDRU installed (up to a maximum of 660
EDRUs). For every cell site in New Orleans the interim solution
shall be deployed on or before August 30, 1998.
b) By September 30, 1999, Seller will deliver and install in the New
Orleans Market only a complete 60MHz filter product which meets
the specifications set forth on Attachment G. If Seller fails to
provide a specification compliant 60MHz filter on or before the
end of September 30, 1999, Seller shall be responsible for the
cost of any additional equipment required to meet Customer's
functionality and license buildout requirements.
2.2.3 Rural Service
Seller agrees to provide reasonable research and development efforts to
explore a solution for the economic provision of PCS Services in Customer's more
rural service areas. These efforts shall include "first office application"
status, "preferred test bed" status as well as preferred involvement in any
other testing or study of the use of PCS spectrum or development of applications
utilizing PCS spectrum
provided that Customer's network topology is consistent with Seller's
requirements for the "first office application", "preferred test bed" or other
tests or studies.
2.2.4 TDMA PCS Microcell
Seller will provide a TDMA PCS Microcell on or before July 30, 1999 for
inbuilding applications. It is anticipated that there will be fewer than ten
(10) applications per market in 1999. If Seller fails to meet this commitment,
it will provide TDMA PCS Minicell equipment on an equivalent per radio price
basis.
2.2.5 Other Customer Needs
Seller agrees to support Customer's other customer needs including WCS and
LMDS as well as Customer CLEC requirements. This support shall include "first
office applications", "preferred test bed" status, as well as preferred
involvement in any other testing or study of the use of WCS and LMDS spectrum or
development of applications utilizing WCS and LMDS spectrum provided that
Customer's network topology is consistent with Seller's requirements for the
"first office application", "preferred test bed" or other tests or studies.
2.3 PRODUCT AVAILABILITY
Seller shall notify Customer, usually at least six (6) months, before
Seller discontinues accepting orders for a Seller's Manufactured Product sold
under this Agreement. Where Seller offers a functionally equivalent Product for
sale, the notification period may vary.
2.4 DOCUMENTATION
Seller shall furnish to Customer, at no additional charge, two copies of
documentation (one CD Rom and one printed) for the Products provided hereunder
sufficient to operate and maintain such Products. Such documentation will be
that customarily provided by Seller to its Customers at no additional charge.
Such documentation shall be provided prior to, with, or shortly after the
shipment of the Products from Seller to Customer. Additional copies of the
documentation are available at prices set forth in the Customer Price List.
2.5 PRODUCT COMPLIANCES
Seller represents that a Product furnished hereunder shall comply, to the
extent required, with the requirements of Part 24 of the Federal Communication
Commission's Rules and Regulations pertaining to personal communications
services in effect upon delivery of such Product. In addition, Seller represents
that a Product furnished hereunder shall comply, to the extent required, with
the requirements of Subpart J of Part 15 of the Federal Communication
Commission's Rules and Regulations in effect upon delivery of such Product,
including those sections concerning the labeling of such Product and the
suppression of radio frequency and electromagnetic radiation to specified
levels. Seller makes no undertaking with respect to harmful interference caused
by (i) installation, repair, modification or change of Products or Software by
other than Seller, its employees, subcontractors or agents; (ii) Products being
subjected to misuse, neglect, accident or abuse by other than Seller, its
employees, subcontractors or agents; or (iii) Products or Software being used in
a manner not In accordance with operating instructions or in a suitable
installation environment or operations of other equipment in the frequency range
reserved for Customer within the licensed Area.
Seller assumes no responsibility under this clause for items not specified
or supplied by Seller. Type acceptance or certification of such items shall be
the sole responsibility of Customer.
2.6 PRODUCT CHANGES
Prior to the shipment of a Product, Seller may at any time make changes in
a Product furnished pursuant to this Agreement, or modify the drawings and
published specifications relating thereto, or substitute Products of later
design to fill an order, provided the changes, modifications, or substitutions
under normal and proper use do not impact upon the Form, Fit, or Function of an
ordered Product as identified in Seller's specifications.
Seller shall notify Customer, usually at least one (1) year, before Seller
discontinues accepting orders for an item of Seller's Manufactured Product sold
u this Agreement. Where Seller offers a product for sale that is equivalent in
Form, Fit, and Function, the notification period may vary.
Seller further agrees that, in issuing Licensed Material Updates and
Licensed Material Generic Releases of Network Wireless System Licensed
Materials, Seller shall assure that any changes and modifications to existing
features and
functionalities effected thereby shall not result in a Material Service Impact.
Seller agrees to maintain a standard, supported, generic version of the
Licensed Materials necessary for or integral to operation of Products furnished
by Seller pursuant to this Agreement for a period of not less than seven (7)
years from the effective date of this Agreement. If Seller ceases to maintain a
standard, supported, generic version of any such Licensed Materials furnished by
Seller pursuant to this Agreement, and such maintenance is not available from
another entity, then Seller shall furnish Customer, under a suitable
confidentiality agreement, to the extent that it is authorized to do so, the
then existing Licensed Materials Source Code, Licensed Materials development
programs, and associated documentation for such standard version to the extent
necessary for Customer to maintain and enhance for its own Use the standard
version of that Licensed Material for which it has the right to Use.
Seller agrees that it shall use all reasonable efforts to qualify as
Seller's Manufactured Product any Vendor Items orderable under this Agreement,
the unavailability of which would result in a Material Service Impact. If such
efforts are successful, such item shall thereafter be treated as Seller
Manufactured Product for purposes of Section 2.7 "CONTINUING PRODUCT/SUPPORT-
PARTS AND SERVICES." If such item cannot be so qualified, Seller agrees that it
will use all reasonable efforts to establish or locate a secondary source for
such item, to identify an item of equivalent Form, Fit, and Function, or to take
other steps, so as to minimize the circumstances in which Seller shall not be
able to provide the notice of discontinuance and the continuing supply of Repair
Parts and repair Services as contemplated by Section 2.7 "CONTINUING
PRODUCT/SUPPORT-PARTS AND SERVICES."
2.7 CONTINUING PRODUCT SUPPORT- PARTS AND SERVICES
In addition to repairs provided for under Product Warranty, Seller offers
repair Services and Repair Parts in accordance with Seller's repair and Repair
Parts practices and term and conditions then in effect, for Seller's Products
furnished pursuant to this Agreement. Such repair Services and Repair Parts
shall be available while Seller is manufacturing or stocking such Products or
Repair Parts, but in no event less than five (5) years after such Product's
discontinued availability effective date. Seller may use either new,
remanufactured, reconditioned, refurbished, or functionally
equivalent Products or parts in the furnishing of repairs or replacements under
this Agreement.
If during the agreed to support period Seller is unable to provide Repair
Part(s) and/or repair Service(s) and a functionally equivalent replacement has
not been designated, Seller shall advise Customer, by written notice prior to
such discontinuance to allow Customer to plan appropriately, and if Seller is
unable to identify another source of supply for such Repair Part(s) and/or
repair Service(s), Seller shall provide Customer, upon request, with non-
exclusive licenses for Product Manufacturing Information to the extent Seller
can grant such licenses, so that Customer will have sufficient information to
have manufactured, or obtain such Service or parts from other sources. License
terms will be in accordance with Seller's licensing procedures then in effect.
2.8 SPECIFICATIONS
Upon request, Seller shall provide to Customer, at no charge, two (2)
copies of Seller's available commercial specifications applicable to Products
orderable hereunder. Additional copies are available at the applicable price
therefor.
2.9 CUSTOMER TECHNICAL SUPPORT
Seller provides Customer Technical Support for the PCS through the Customer
Technical Support Organization (CTSO). The CTSO provides diagnostic center
support, performance measurement and system engineering services at its then
standard prices, term and conditions for such services. Special, unusual or
customized services may be billable, depending upon the nature of the request.
Seller shall provide Customer access to emergency technical diagnostic
assistance Service, twenty-four (24) hours a day, 365/366 days per year. Such
Service is currently provided at no charge to Seller's customers. Seller agrees
that during the term of this Agreement it shall not commence to charge Customer
for such Service unless and until it commences generally to charge its other
customers in comparable circumstances for such Services. In all cases, however,
such Service shall be free of charge to Customer if it relates to service
affecting warranty defects.
2.9A CLASS A AND B CHANGES
Class A and B Changes - After a Product has been shipped to Customer, if
Seller issues a Class A or Class B Change, or where modification to correct an
error in field documentation is to be introduced, Seller shall promptly notify
Customer of such change.
Customer may notify Seller of any problems which it considers to require
Class A Change. Seller shall then make a determination as to whether such
problem requires a Class A Change. However, if Customer disagrees with Seller's
determination, then, Customer may submit such disagreement to arbitration in
accordance with Section 1.40.
With respect to a Product which is subject to a Class A Change, Seller will
implement such change, at its expense, if such change is announced (or Customer
notifies Seller that such change is required) within seven (7) years from the
date of shipment of the applicable Product, by, at Seller's option, either (1)
modifying the Product at Customer's site; (2) modifying the Product which
Customer has returned to Seller in accordance with Seller's instructions; or (3)
replacing the Product requiring the change with replacement Product for which
such change has already been implemented.
If Seller did not engineer the original Product and, accordingly, office
records are not available to Seller, and/or Seller did not install the original
Product, Seller will, at its expense, provide the generic Class A Change
information and associated parts for Customer's use in applying such change, if
it is announced within seven (7) years from the date of shipment of that
Product. Notwithstanding the above, in the event that the first attempt to
implement such change cannot reasonably be expected to be successful without the
on-site assistance of Seller, Seller also shall, at no expense to Customer,
furnish reasonable amounts of on-site assistance to effect the first such
change.
If Seller determines that the applicable Product or part thereof is readily
returnable, Customer, at its expense, shall remove such Product or part and
return it to Seller's designated location and Seller, at its expense, shall
implement such change (or replace it with Product or part for which such change
has already been implemented) and return such changed (or replacement) Product
or part to Customer's designated location within the Territory. Reinstallation
shall be performed by Customer, at its expense.
In unusual situations where Customer's spares or plug-in stocks are not
available to implement a rotational program for a Class A Change, Seller will
provide a seed stock.
In administering the Class A Change procedure provided for herein, Seller
shall use all reasonable efforts to assure that implementation of a Class A
Change will not result in the System being out of service or otherwise result in
a Material Service Impact. If, in spite of such efforts, such an impact would
occur during implementation of the change, Seller shall work with Customer and
Seller shall use its best efforts to establish procedures to ensure that such
impact will be minimized and limited to off peak hours.
If Customer does not make or permit Seller to make a Class A Change as
stated above within one (1) year from the date of change notification or two (2)
years in the case of Customer Change Notices (CCNs), subsequent changes, repairs
or replacements affected by the failure to make such change may, at Seller's
option, be billed to Customer whether or not such subsequent change, repair or
replacement is covered under warranty.
If requested, Class A Changes announced more than seven (7) years from date
of shipment will be implemented at Customer's expense.
If Seller issues a Class B Change after a Product has been shipped to
Customer, Seller shall promptly notify Customer of such Class B Change. If such
Class B Change is being generally offered to Seller's customers then Seller
shall perform such Class B Change for Customer at no cost to Customer. With
respect to Class B Changes not being generally offered to Seller's customers,
Customer may request Seller's performance of such Class B Change; provided,
however, that Seller may charge Customer its then-standard rates for such Class
B Change.
All change notifications for Class A Changes and Class B Changes shall
contain the following information: (1) a description of the change; (2)
reason(s) for the change; (3) the price impact such change will have, if known,
(4) the effective date of the change; (5) the procedure for implementing the
change, and (6) the implementation schedule for the change.
In administering the Class A Change procedure provided for in this Section
2.10, and where the items necessary to effect a change are in limited
availability, Seller agrees to allocate reasonably such items among its
customers in a way that does not
discriminate against Customer on account of any lesser volume of business they
may give to Seller than other customers may give to Seller.
Epidemic Failures - In the event that Customer experiences failures of a
Product, which Customer's Chief Technical Officer (the "Customer CTO") believes
in good faith to be excessive, the Customer CTO may bring such failures to the
attention of Seller by giving written notice to Seller and Seller shall give
highest priority to the remedy of the cause of such failures. If such failures
are as a result of defects or nonconformitites which would be covered by the
applicable warranty provisions of this Agreement, they shall be dealt with under
this Section 2.10 as a matter requiring a Class A Change.
If such failures have occurred in a circuit board, radio base station
subassembly or other Product that is intended for deinstallation and
reinstallation by Customer in the ordinary course of business, and such failures
have materially depleted Customer's spares complement of such board, subassembly
or Product, Seller shall, without charge to Customer, supply to Customer such
additional units of the affected board, subassembly, or Product as are necessary
to maintain an adequate emergency replacement stock, until implementation of a
permanent remedy. Upon implementation of the permanent remedy, such additional
boards, subassemblies or Products shall, at Customer's expense, be returned to
Seller in the same condition as originally supplied by Seller, reasonable wear
and tear accepted.
Where excessive failure occurs in a Product the unavailability of which
would result in a Material Service Impact, Seller agrees to use, at no
additional cost to Customer, expedited freight handling when forwarding fixes,
replacements or additional Products.
Disputes - The parties acknowledge that because the classification of
charges will determine whether charges to Products must be performed at Seller's
expense, the parties may dispute the classification given to an identified
problem, including alleged problems of excessive failures identified by the
Customer CTO. If the Customer CTO in good faith contends that such failures are
resulting or shall result in a Material Service Impact or, if not remedied, are
likely to result in such an impact, Seller shall, upon written request of the
Customer CTO, undertake to remedy the identified problem hereunder. If it is
ultimately determined that the problem should not be classified as a problem
requiring Class A Change treatment,
Seller shall be entitled to invoice Customer at Seller's then-standard charges
for the work to remedy such problem.
2.10 PRODUCT WARRANTY
a) Seller warrants to Customer only, that:
(i) Seller shall convey free and clear title to the Products to
Customer and, as of the date title to Products passes to Customer, Seller will
have the right to sell, transfer, and assign such Products and the title
conveyed by Seller shall be good;
(ii) Seller's Manufactured Products will be free from defects in
material and workmanship, will conform to and perform in accordance with
Seller's applicable Specification (Attachment D), will operate in accordance
with Attachment D when installed on or adjacent to electrical high voltage
transmission towers, and will, when used as designed, create no material adverse
health effects;
(iii) With respect to Vendor Items, Seller, to the extent permitted,
does hereby assign to Customer the warranties given to Seller by its vendor of
such Vendor Items. Such assignment will be effective on the date of shipment of
such Vendor Items. With respect to Vendor Items recommended by Seller in its
Specifications for which the vendor's warranty cannot be assigned to Customer,
or if assigned, less than sixty (60) days remain of the vendor's warranty at the
time of assignment, Seller warrants for sixty (60) days from the date of
shipment or, if installed by Seller, on Acceptance by Customer or thirty (30)
days from the date Seller submits its notice of completion of its installation
whichever is sooner, that such Vendor's Items will be free from defects in
material and workmanship.
b) The Warranty Periods listed below are applicable to Seller's
Manufactured Products furnished pursuant to this Agreement, and
unless otherwise stated begin upon delivery to the destination
specified in Customer's order or, if installed by Seller, on the
first day of the next full calendar month following Acceptance by
Customer or on the first day of the second full calendar month
following the date Seller submits its notice of completion of its
installation, whichever is sooner:
Repaired or
Class of New Replacement
Product Product* Product or Part**
------- -------- -----------------
PCS Switching Center and 24 Months 6 Months
Base Station Hardware
Transmission Systems
-All Transmission Products in
the "2000 Product Family" 60 Months 6 Months
-D4 Circuit Packs 60 Months 6 Months
-SLC Circuit Packs 60 Months 6 Months
-SLC Series 5 Plug-ins 60 Months 6 Months
-T1 Repeaters 60 Months 6 Months
-DDM-1000 Circuit Packs 60 Months 6 Months
-Other Transmission Products 24 Months 6 Months
Energy Systems 12 Months 3 Months
All other Network Systems Products 12 Months 3 Months
* Refer to the SOFTWARE WARRANTY CLAUSE for associated Software
warranties.
** The Warranty Period for a repaired Product or part thereof repaired
under or for a replacement Product or part thereof furnished in lieu of repair
under this Warranty is the period listed or the unexpired term of the new
Product Warranty Period, whichever is longer.
Notwithstanding anything in this Agreement to the contrary, Customer's use
of any part of any system In Revenue Service (or to provide training or hands-on
experience to Customer's personnel) shall, if prior to Seller's notice of
installation completion, commence the applicable warranty period; provided;
however, this provision shall not apply to training provided by Seller nor to
the extent that Customer's personnel merely familiarize themselves with the
Initial Order without actual operation of the Products.
c) If, under normal and proper use during the applicable Warranty
Period, a defect or nonconformity is identified in a Product
furnished by Seller, and Customer notifies Seller in writing of
such defect or nonconformity promptly after Customer discovers
such defect or nonconformity and follows Seller's instructions
regarding the return of the defective or nonconforming Product,
Seller shall take the following action:
(i) Seller, at its option, shall attempt first to repair or
replace such Product without charge at its facility or, if
not feasible, provide a refund or credit based on the
original purchase price, and installation charges if
installed by Seller, provided however, if such removal will
cause a Material Service Impact, Customer's consent shall be
required prior to any such removal. Customer must return
the Product to Seller for repair and replacement, except as
noted below.
(ii) Where Seller has elected to repair or replace a Product
which has been installed by Seller and Seller ascertains
that the Product is not readily returnable by Customer,
Seller will repair or replace the Product at Customer's
site.
d) If Seller has elected to repair or replace a defective Product,
Customer is responsible for removing and reinstalling and, in
addition, for on-site repair or replacement of cable and wire
Products, Customer must make the Product accessible for repair or
replacement, and is responsible to restore the site.
e) Products returned for repair or replacement will be accepted by
Seller only in accordance with its instructions and procedures
for such returns. The transportation expense associated with
returning such Product to Seller shall be borne by Customer.
Seller shall pay the cost of transportation of the repaired or
replacing Product to the destination designated by Customer
within the Territory.
f) Defective or nonconforming Products or parts which are replaced
hereunder shall become Seller's property. Seller may use either
new, remanufactured, reconditioned, refurbished, or functionally
equivalent Products or parts in the
furnishing of repairs or replacements under this Agreement.
g) If Seller determines that a Product for which warranty Service is
claimed is not defective or not nonconforming, Customer shall pay
Seller's costs of handling, inspecting, testing, and transporting
and, if applicable, traveling and related expenses.
h) Seller make no warranty with respect to defective conditions or
nonconformities resulting from the following: Customer
modifications (other than in accordance with Seller's
instructions), misuse, neglect, accident or abuse; improper
wiring, repairing, splicing, alteration, installation, storage or
maintenance by other than Seller, its employees, subcontractors,
representatives or agents; use in a manner not in accordance with
Seller's or vendor's specifications, or operating instructions or
failure of Customer to apply previously applicable Seller
modifications and corrections. In addition, Seller makes no
warranty with respect to Products which have had their serial
numbers or months and year of manufacture removed, altered or
with respect to expendable items, including, without limitation,
fuses, light bulbs, motor brushes, and the like.
i) THE FOREGOING PRODUCT WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF
ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. CUSTOMER'S SOLE AND EXCLUSIVE REMEDY SHALL BE
SELLER'S OBLIGATION TO REPAIR, REPLACE, CREDIT OR REFUND AS SET
FORTH ABOVE IN THIS WARRANTY.
If Customer and Seller have a disagreement as to whether or not a problem
is a defect or non-conformity covered by this warranty, Seller agrees to correct
the problem and xxxx Customer for the corrective action under Section "Invoices
and Terms of Payment" of the Agreement. Seller will segregate such bills. Such
disputed warranty claims will be subject to resolution by the arbitration in
accordance with Section 1.40 of this Agreement, and if resolved in Customer's
favor, Seller agrees to credit Customer for the costs of corrective action
covered by warranty.
Seller agrees that if Customer acquired equipment, software, or licensed
materials (including, without limitation, radio frequency and network equipment,
but not including components internal to Products furnished under this
Agreement) from a source other than Seller, and if Customer installs such an
item in or interconnects such an item with any PCS System, Products or Licensed
Materials obtained under this Agreement, Seller agrees that Seller's warranties
hereunder shall not be voided or affected; provided, however, Seller's
warranties shall not apply to damage, defects, nonconformities, or degradation
in performance in Products and/or Licensed Materials purchased (or, with respect
to Licensed Materials, licensed) under this Agreement to the extent they are
caused by installation or interconnection of the item in violation of Seller's
instructions, which such instructions shall be based upon reasonable and
appropriate technical considerations, or caused by (but not simply revealed by)
such installed or interconnected items. Seller shall be entitled to xxxx
Customer Seller's Standard Charges for Seller's efforts to identify and/or
correct any such damage, defect, nonconformity, or degradation in performance so
caused, and to test and transport the corrected item. Nothing in this paragraph
shall itself be deemed to require Seller to publish interface information or
otherwise to facilitate such installation or interconnection of items not
obtained from Seller.
If as a result of a defect or non-conformity covered by this warranty a
Material Service Impact is experienced, Seller shall at its sole cost and
expense repair or correct the problem or replace the defective Products or
Licensed Materials and ship any required replacement Products (or components
thereof) or replacement Licensed Materials to Customer as promptly as possible.
If such repair, replacement or installation or replacement Products or Licensed
Materials require the Services of Seller service personnel at Customer's sites,
Seller shall, at its sole cost and expense, dispatch such service personnel as
are required to correct such problem as promptly as possible upon being notified
thereof by Customer.
The warranties provided for Licensed Materials are transferable to the
extent provided in Section 3.11 "LIMITED TRANSFERABILITY" of this Agreement.
The warranties on Products (including any warranties for the installation and
repair thereof) shall be transferable along with the Products with which they
are associated. No charge shall be made by Seller to Customer in respect of any
such transfer of warranty; but, Seller shall have the right to charge the
transferee a nominal
fee to compensate Seller for registering the transferee as entitled to the
transferred warranty and otherwise readying Seller to react to warranty claims
made by the transferee. Warranties provided in this Agreement are otherwise non-
transferable. Notwithstanding the foregoing, if as a result of the transfer of
Licensed Materials or Products it would be used or operated in a country other
than the United States, the warranties furnished hereunder shall not be
transferable; however, should the Warranty Period for such item have not expired
by the time of such transfer, Seller agrees to offer to the transferee Seller's
standard warranty for such item offered (or intended to be offered) by Seller in
such country, if any, for the remainder of such unexpired Warranty Period.
Furthermore, Seller shall have no obligation hereunder to honor any warranty
claim made by any equipment manufacturer competitor of Seller, including any
party whose principal business is the sales of new or used telecommunications
equipment, it being the intention of the parties that only claims from a user of
such equipment directly in the provision of telecommunications services to the
public are authorized under any transferred warranty.
3. ARTICLE III
PROVISIONS APPLICABLE TO THE LICENSING OF SOFTWARE
3.1 GENERAL
The provisions of this Article apply to the granting of licenses pursuant
to this Agreement by Seller to Customer for Licensed Materials.
3.2 LICENSE
Upon delivery of Licensed Materials, but subject to payment of all
applicable license fees including, but not limited to, any continuing up-date
fees, Seller grants to Customer a perpetual, personal, nontransferable, except
as set forth in Section 3.11, and nonexclusive license pursuant to this
Agreement to use Licensed Materials in the Territory with either the Designated
Processor or temporarily on any comparable replacement, if the Designated
Processor becomes inoperative, until the Designated Processor is restored to
operational status. Customer shall use Licensed Materials only for its own
internal business operation.
The license grants Customer no right to and Customer will not sublicense
such Licensed Materials, or modify, decompile, or
disassemble Software furnished as object code to generate corresponding Source
Code,
3.3 TITLE, RESTRICTIONS AND CONFIDENTIALITY
All Licensed Materials (whether or not part of Firmware) furnished by
Seller, and all copies thereof made by Customer, including translations,
compilations, and partial copies are the property of Seller.
Except for any part of such Licensed Materials which is or becomes
generally known to the public through acts not attributable to Customer,
Customer shall hold such Licensed Materials in confidence, and shall not,
without Seller's prior written consent, disclose, provide, or otherwise make
available, in whole or in part, any Licensed Materials to anyone, except to its
employees having a need- to-know. Customer shall not copy Software embodied in
Firmware. Customer shall not make any copies of any other Licensed Materials
except as necessary in connection with the rights granted hereunder. Customer
shall reproduce and include any Seller copyright and proprietary notice on all
such necessary copies of the Licensed Materials. Customer shall also xxxx all
media containing such copies with a warning that the Licensed Materials are
subject to restrictions contained in an agreement between Seller and Customer
and that such Licensed Materials are the property of Seller. Customer shall
maintain records of the number and location of all copies of the Licensed
Materials.
Customer shall take appropriate action by instruction, agreement, or
otherwise, with the persons permitted access to the Licensed Materials so as to
enable Customer to satisfy its obligations under this Agreement.
When the Licensed Materials are no longer needed by Customer, or if
Customer's license is canceled or terminated, Customer shall return all copies
of such Licensed Materials to Seller or follow written disposition instructions
provided by Seller.
3.4 CHANGES IN LICENSED MATERIALS
Prior to shipment, Seller may at any time modify the specifications
relating to its Licensed Materials. Seller may substitute modified Licensed
Materials to fill an order, provided the modifications, under normal and proper
Use, do not materially adversely affect the Use, Function, or performance of the
ordered Licensed Materials or result in a Material Service
Impact. Unless otherwise agreed, such substitution shall not result in any
additional charges to Customer with respect to licenses for which Seller has
quoted fees to Customer.
If Seller has not provided two (2) archival copies of the Licensed
Materials, Customer may also make and maintain an archival copy of the Licensed
Materials for so long as such Licensed Materials is relevant to Customer's
operations and provided that the original license issued for such Licensed
Materials is valid and effective. Moreover, nothing in this Agreement shall be
deemed to prevent Customer from making backup copies, with Seller's pre-
approval, which will not be unreasonably withheld, of the disk drive of the
Designated Processor on which Licensed Materials furnished hereunder are loaded
and run, but all such copies to the extent they contain a copy of such Licensed
Materials shall be subject to return, erasure, or destruction as provided in
this section.
3.5 MODIFICATIONS TO SOFTWARE
Customer may request Seller to make changes to Seller's Software. Upon
receipt of a document describing in detail the changes requested by Customer,
Seller will respond in writing to Customer within ninety (90) days. If Seller
agrees to undertake such modifications, the response shall quote a proposed
delivery date and a fee for a license under such modified Software.
3.6 MODIFICATION BY CUSTOMER
Unless otherwise agreed, Customer is not granted any right to modify
Software furnished by Seller under this Agreement.
3.7 RELATED DOCUMENTATION
Seller shall furnish to Customer, at no additional charge, two copies of
the Related Documentation for Software furnished by Seller pursuant to this
Agreement. Such Related Documentation will be that customarily provided by
Seller to its Customers at no additional charge. Such Related Documentation
shall be provided prior to, with, or shortly after provision of Software by
Seller to Customer. Additional copies of the Related Documentation are available
at prices set forth in the Customer Price List.
3.8 SOFTWARE WARRANTY
a) Seller warrants to Customer only that:
(i) Software developed by Seller and Software integral to the Products
provided to Customer will, upon shipment, be free from those defects which
materially affect performance in accordance with Seller's Specifications and
Seller further warrants that it has the right to grant the licenses to Use
Software it grants under this Agreement; and
(ii) With respect to Software not covered in paragraph (a), sub-paragraph (i),
Seller to the extent permitted, does hereby assign to Customer the warranties
given to Seller by its supplier of such Software.
(iii) The TDMA optional features buyout package will provide Customer with the
same features and functionality offered to AT&T Wireless as of the date of
System Acceptance for the Initial System.
b) The Warranty Periods listed below are applicable to Software developed
by Seller and Software integral to the Products provided to Customer,
the Related Documentation associated with such Software, and the
medium on which such Software is recorded, unless otherwise stated.
Software Warranty Period
-------- ---------------
PCS Switching Center 1 Year
and Base Station
Transmission System 1 Year
All Other 1 Year
The Warranty Period for media and Related Documentation shall commence on
the same date as commences the Warranty Period for their associated Software.
The Warranty Period for PCS Switching Center and Base Station Software
(including any prior Software Update issued to Customer in respect thereto)
expires upon installation of any subsequent Software Update or Software Generic
Release for such Software (or Software Update).
c) If, under normal and proper use during the applicable Warranty
Period, Software covered in paragraph (a), subparagraph (i)
proves to have a defect, which materially affects its performance
in accordance with the specifications referenced in the order,
and Customer notifies Seller in writing of such defect promptly
after Customer discovers or should have discovered such defect
and follows Seller's instructions, if any, regarding return of
defective Software, Seller shall at its option, attempt first to
either correct or replace such Software without charge or if
correction or replacement is not feasible, provide a refund or
credit based on the original license fee, provided however, if
such removal will cause a Material Service Impact, Customer's
consent shall be required prior to any such removal.
d) Software returned for correction or replacement will be accepted
by Seller only in accordance with its instructions and procedures
for such returns. The transportation expense associated with
returning such Software to Seller shall be borne by Customer.
Seller shall pay the costs of transportation of the corrected or
replacing Software to the destination designated by Customer
within the Territory.
e) If Seller determines that Software for which warranty Service is
claimed is not defective or nonconforming, Customer shall pay
Seller's costs of handling, inspecting, testing and transporting
and, if applicable, traveling and related expenses.
f) Seller makes no warranty with respect to defective conditions or
nonconformities resulting from the following: Customer
modifications (other than in accordance with Seller's
instructions), misuse, neglect, accident, or abuse; installation,
or maintenance by other than Seller, its employees,
subcontractors, representatives, or agents; use in a manner not
in accordance with Seller's specifications, operating
instructions, or license-to-use; or failure of Customer to apply
previously
applicable Seller modifications and corrections. Moreover, no
warranty is made that Software will run uninterrupted or error
free.
g) THE FOREGOING SOFTWARE WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU
OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. CUSTOMER'S SOLE AND EXCLUSIVE REMEDY SHALL BE
SELLER'S OBLIGATION TO CORRECT, REPLACE, CREDIT, OR REFUND AS SET
FORTH ABOVE IN THIS WARRANTY.
If Customer and Seller have a disagreement as to whether or not a problem
is a defect or non-conformity covered by this warranty, Seller agrees to correct
the problem and xxxx Customer for the corrective action under Section "Invoices
and Term of Payment" of the Agreement- Seller will segregate such bills. Such
disputed warranty claims will be subject to resolution by the arbitration in
accordance with Section 1.40 of this Agreement, and if resolved in Customer's
favor, Seller agrees to credit Customer for the costs of corrective action
covered by warranty.
Seller agrees that if Customer acquired equipment, software, or licensed
materials (including, without limitation, radio frequency and network equipment,
but not including components internal to Products furnished under this
Agreement) from a source other than Seller, and if Customer installs such an
item in or interconnects such an item with any PCS System, Products or Licensed
Materials obtained under this Agreement, Seller agrees that Seller's warranties
hereunder shall not be voided or affected; provided, however, Seller's
warranties shall not apply to damage, defects, nonconformities, or degradation
in performance in Products and/or Licensed Materials purchased (or, with respect
to Licensed Materials, licensed)under this Agreement to the extent they are
caused by installation or interconnection of the item in violation of Seller's
instructions, which such instructions shall be based upon reasonable and
appropriate technical considerations, or caused by (but not simply revealed by)
such installed or interconnected items. Seller shall be entitled to xxxx
Customer Seller's Standard Charges for Seller's efforts to identify and/or
correct any such damage, defect, nonconformity, or degradation in performance so
caused, and to test and transport the corrected item. Nothing in this paragraph
shall itself be deemed to require Seller to publish interface information or
otherwise to
facilitate such installation or interconnection of items not obtained from
Seller.
If as a result of a defect or non-conformity covered by this warranty a
Material Service Impact is experienced, seller shall at its sole cost and
expense repair or correct the problem or replace the defective Products or
Licensed Materials and ship any required replacement Products (or components
thereof) or replacement Licensed Materials to Customer as promptly as possible.
If such repair, replacement, or installation or replacement Products or Licensed
Materials require the Services of Seller service personnel at Customer's sites,
Seller shall, at its sole cost and expense, dispatch such service personnel as
are required to correct such problem as promptly as possible upon being notified
thereof by Customer.
The warranties provided for Licensed Materials are transferable to the
extent provided in Section 3.11 "LIMITED TRANSFERABILITY" of this Agreement. The
warranties on Products (including any warranties for the installation and repair
thereof) shall be transferable along with the Products with which they are
associated. No charge shall be made by Seller to Customer in respect of any such
transfer of warranty; but, Seller shall have the right to charge the transferee
a nominal fee to compensate Seller for registering the transferee as entitled to
the transferred warranty and otherwise readying Seller to react to warranty
claims made by the transferee. Warranties provided in this Agreement are
otherwise non-transferable. Notwithstanding the foregoing, if as a result of the
transfer of Licensed Materials or Products it would be used or operated in a
country other than the United States, the warranties furnished hereunder shall
not be transferable; however, should the Warranty Period for such item have not
expired by the time of such transfer, Seller agrees to offer to the transferee
Seller's standard warranty for such item offered (or intended to be offered) by
Seller in such country, if any, for the remainder of such unexpired Warranty
Period Furthermore, Seller shall have no obligation hereunder to honor any
warranty claim made by any equipment manufacturer competitor of Seller,
including any party whose principal business is the sales of new or used
telecommunications equipment, it being the intention of the parties that only
claims from a user of such equipment directly in the provision of
telecommunications services to the public are authorized under any transferred
warranty.
3.9 CANCELLATION OF LICENSE
If Customer fails to comply with any of material terms and conditions of
the second Paragraph of Section 3.2 and Section 3.3 and such failure continues
beyond thirty (30) days after receipt of written notice thereof by Customer,
Seller, upon written notice to Customer, may cancel any affected license for
Licensed Materials.
3.10 TAXES APPLICABLE TO SOFTWARE
Notwithstanding clause TAXES in Article I of this Agreement, Seller shall
not xxxx, collect, or remit any state or local sales or use tax with respect to
the license of Software under this Agreement, or with respect to the performance
of Services related to such software, which Customer represents to Seller is not
properly due under Customer's interpretation of the law of the taxing
jurisdiction, if (1) Customer submits to Seller a written explanation of the
authorities upon which Customer bases its position that the license or
performance of Services is not subject to sales or use tax, and (2) Seller
agrees that there is authority for Customer's position, provided, however, that
Customer shall hold Seller harmless for all costs and expenses (including, but
not limited to, taxes and related charges payable under clause TAXES, and
attorneys fees) arising from the assertion by a taxing authority that the
license of, or the performance of Services with respect to, the Software was
subject to state or local sales or use tax.
3.11 LIMITED TRANSFERABILITY
a. Where Customer elects to transfer Products furnished under this
Agreement to a third party and where such Products will remain in
place and operational for the purpose of continuing to provide
wireless telecommunications services in the area for which such
Products were installed, or where Customer elects to transfer Products
to another of its Markets or to an Operating Affiliate for reuse
within the United States (including Puerto Rico), Customer may
transfer its right to use the Licensed Materials furnished under this
Agreement for Use with such Products without Seller's consent and
without the payment of any additional Licensed Materials right-to-use
fee(s) by the transferee, except where feature or size sensitive units
are a factor, but only under the following conditions:
(1) The right to use such Licensed Materials may be transferred
only together with the
Products with which Customer has a right to use such
Licensed Materials, and such right to use the Licensed
Materials shall continue to be limited to Use with such
Products:
(2) Before any such Licensed Materials shall be transferred,
Customer shall notify Seller of such transfer and the
transferee shall have agreed in writing (a copy of which
will be provided to Seller) to keep the Licensed Materials
in confidence and to corresponding conditions respecting use
of Licensed Materials as those imposed on Customer in this
Agreement; and
(3) The transferee shall have the same right to Licensed
Materials warranty and Licensed Materials maintenance for
such Licensed Materials as the transferor, provided the
transferee continues to pay the fees, including recurring
Licensed Materials Update fees, if any, associated with such
Licensed Materials or maintenance.
b. Except as may otherwise in this Agreement be provided expressly,
Customer shall have no right to transfer Licensed Materials furnished
by Seller under this Agreement without consent of Seller. If Customer
elects to transfer Products purchased under this Agreement for which
it does not under this Agreement have the right to transfer the
related Licensed Materials, Seller agrees that upon written request of
the transferee of such Products, or of Customer, Seller shall not
without reasonable cause fail to grant to the transferee a license to
use such Licensed Materials with the Products upon Seller's then
standard license terms and conditions, including any and all recurring
or continuing fees associated with such Licensed Materials, but
excluding any nonrecurring initial license fees previously paid for
such Licensed Materials by Customer.
3.12 AVAILABILITY AND SUPPORT OF LICENSED MATERIAL FEATURES/ LICENSED MATERIAL
UPDATES
Seller agrees to make available to Customer, at Seller's Standard Charges
therefor, those additional Licensed Materials features applicable to the Initial
Systems and other Seller's Manufactured Product which are developed by Seller
and which Seller has a right to and has elected to license to others providing
wireless telecommunications services.
Seller shall, when available, offer to Customer at Seller's prices quoted
in the then current applicable Customer Price List, maintenance and/or annual
Licensed Material Update Services, as provided in this Agreement.
3.13 YEAR 2000 COMPLIANCE WARRANTY
a. The Seller represents and warrants that during the Warranty Periods
set forth in Section 2.11 (b) any Seller Products and Software
delivered by the Seller to the Customer under this Contract will
(1) accurately and fully record, store, present and process
calendar dates falling on or after January 1, 2000, with
substantially the same functionality as such products
record, store, present and process calendar dates falling on
or before December 31, 1999; and
(2) provide substantially the same functionality with respect to
the introduction of records containing dates falling on or
after January 1, 2000, as it provides with respect to the
introduction of records containing dates falling on or
before December 31, 1999. All of the foregoing functionality
shall be known as "Year 2000 Capable."
b. When Customer purchases more than one version of Year 2000 Capable
software, if they are intended by Seller to interoperate, all such
versions of Year 2000 Capable Software will be compatible and
interoperate in such manner as to process between them, as applicable,
date related data correctly as described in Section (a) above.
c. The foregoing sets forth an additional warranty for Seller's Products
and Software. The failure of the Products and Software to meet the
foregoing
requirements during the warranty period set forth in subsection 3.8(b)
entitles Customer to the remedies set forth in subsection 3.8(c).
d. Nothing in the foregoing shall be deemed to make Seller responsible
for the Year 2000 capability of any third party Software
interoperating or intending to operate with Seller's Software.
Customer and/or the manufacturer of other supplier of such third party
Software shall be responsible for any Year 2000 compliance and
assuring the ability of such third party Software to successfully
operate while interoperating with Seller's Software.
4. ARTICLE IV
PROVISIONS APPLICABLE TO ENGINEERING, INSTALLATION, AND OTHER SERVICES
4.1 GENERAL
The provisions of this Article IV shall be applicable to the furnishing by
Seller of Services other than Services furnished pursuant to any other Article
of this Agreement.
4.2 ACCEPTANCE OF INSTALLATION
At reasonable times during the course of Seller's installation, Customer,
at its request may, or upon Seller's request, shall, inspect completed portions
of such installation. Seller shall provide Customer with at least seven (7) days
prior notice before Seller commences installation completion tests, and Customer
shall have the right to observe Seller's testing of the Product being installed
to determine that such testing and the test results are in accordance with
Seller's acceptance standards or acceptance procedures, as described in
Attachment D. If Customer does not attend Seller's tests, Seller shall proceed
with the tests and promptly provide the test results to Customer. The
installation work shall be considered complete and ready for acceptance by
Customer when the Product has been installed and tested by Seller in accordance
with its standard procedures, and Seller represents such Product to be in
working order. Upon completion of the installation, Seller will submit to
Customer a Notice of Completion, pursuant to section "1.27 -Notices" of this
Agreement. The issuance of said Notice of Completion shall be deemed
"Provisional Acceptance."
Upon receipt by Customer from Seller of a Notice of Completion, Customer
has the right to perform an Acceptance Test
with respect to Products, Software or other items furnished pursuant to this
Agreement. Unless otherwise agreed by the parties, Customer shall have an
Acceptance Test Period of thirty (30) consecutive calendar days from the date of
the Notice of Completion to conduct the Acceptance Test. The job will be
considered as meeting Final Acceptance unless Seller receives notification to
the contrary within thirty (30) days after submitting the notice of completion.
In Revenue Service at any time after completion of the installation shall
automatically constitute Final Acceptance of the relevant installation. The
provisions of this Section 4.2 shall not apply to acceptance of an Initial
System in each Market. A separate process for determination of System Acceptance
for an Initial System shall be conducted pursuant to the provisions of
Attachment D.
If an item so fails the Acceptance Test during the Acceptance Test Period,
the Acceptance Date shall be extended on a day-to-day basis until the item as
modified, is accepted. If no notification is submitted to Seller by Customer
within such Acceptance Test Period stating that the item has initially failed
the Acceptance Test, then the date on which such period commences shall be the
Acceptance Date. When an item has initially failed acceptance testing, prior to
Customer resuming the Acceptance Test Customer and Seller must agree that all
problems which would cause a Material Service Impact have been corrected by
Seller. Should the parties disagree as to whether a problem would cause a
Material Service Impact, the matter will be submitted to arbitration in
accordance with Section 1.40. Problems which would not cause Material Service
Impact shall be corrected by Seller at Seller's expense as quickly as
practicable after Acceptance.
No later than thirty (30) days after the effective date of this Agreement,
Seller shall provide Customer with a proposed Acceptance Test Plan (ATP).
Customer shall within 30 days of receipt of Seller's ATP, provide proposed
changes or additions to the ATP. Seller, upon receipt of such Customer proposed
changes or additions, shall provide a final ATP to Customer within seven (7)
days. The completed ATP shall be incorporated as Attachment D to this Agreement.
4.3 CONDITIONS OF INSTALLATION AND OTHER SERVICES PERFORMED ON CUSTOMER'S SITE
The respective responsibilities of Seller and Customer are set forth in the
Responsibility Matrix attached hereto as Attachment C.
4.3.1 ITEMS PROVIDED BY CUSTOMER
Except as the parties may have otherwise agreed for Turnkey Services or in
the Responsibility Matrix, as set forth in this Agreement or in other agreements
of the parties, Customer will be responsible for furnishing the following items
(as required by the conditions of the particular installation or other on-site
Service, hereinafter collectively referred to as the "Service") at no charge to
Seller and these items will not be included in Seller's price for the Service.
Seller's representative shall have the right to inspect the site prior to
Service start date. Should Customer fail to furnish any of such items for which
it is responsible after Seller provides Customer notice, Seller may furnish such
items and charge Customer for them in addition to the prices otherwise charged
by Seller for the Service.
Regulatory Commission Approvals--Prior to Service Start Date, obtain all
-------------------------------
such material approvals, licenses, permits, tariffs and/or other authorities
from the Federal Communications Commission and state and local public utilities
commissions as may be reasonably necessary for construction and operation of a
Personal Communications Services System.
Easements, Permits and Rights-of-Way--Prior to Service Start Date, provide
------------------------------------
all rights-of-way, easements, licenses to come upon land to perform the Service,
permits and authority for installation of Products and other item; permits for
opening sidewalks, streets, alleys, and highways; and construction and building
permits.
Access to Building and Work Site--Allow employees of Seller and its
--------------------------------
subcontractors free access to premises and facilities at all normal business
hours during the scheduled Service or at such other times as are reasonably
requested by Seller. Customer shall obtain for Seller's and its subcontractors'
employees any necessary identification and clearance credentials to enable
Seller and its subcontractors to have access to the work site.
General Building Conditions--When Customer provides or arranges for a third
---------------------------
party to provide facilities or structures for PCS installation services,
Customer shall prior to Service start date:
a. Insure that the PCS site structures are in a structurally safe and
sound condition to properly house the materials to be installed, in
accordance with weight, strength, and structural requirements
specified by Seller. Prior to the start of installation, if requested
by Seller, Customer shall provide Seller a certificate of a duly
licensed architect or engineer (dated within ninety (90) days of the
date such certificate is furnished to Seller) stating that the site(s)
meets such requirements;
b. Take such action as may be necessary to insure that the premises will
be dry and free from dust and Hazardous Materials, including but not
limited to asbestos, and in such condition as not to be injurious to
Seller's or its subcontractors' employees or to the materials to be
installed. Prior to commencement of the Services and during the
performance of the Service, Customer shall, if requested by Seller,
provide Seller with sufficient data to assist Seller's supplier in
evaluating the environmental conditions at the work site (including
the presence of Hazardous Materials). The price quoted by Seller's
supplier for the Service does not include the cost of removal or
disposal of the Hazardous Materials from the work site. Customer is
responsible for removing and disposing of the Hazardous Materials,
including but not limited to asbestos, prior to commencement of the
Service.
Sensitive Equipment--Prior to commencement of the Service, inform Seller of
-------------------
the presence of any sensitive equipment at the work site (e.g., equipment
sensitive to static electricity or light).
Repairs to Buildings--Prior to Service start date, make such alterations
--------------------
and repairs as are necessary for proper installation of items to be installed.
Openings in Buildings--Prior to Service start date, furnish suitable
---------------------
openings in buildings to allow the items to be installed to be placed in
position, and provide necessary openings and ducts for cable and conductors in
floors and walls as designated on engineering drawings furnished by Seller.
Surveys--Prior to Service start date furnish surveys (describing the
-------
physical characteristics, legal limitations and utility locations for the work
site) and a legal description of the site.
Electrical Current, Heat, Light and Water--Provide electric current for
-----------------------------------------
charging storage batteries and for any other
necessary purposes with suitable terminals where work is to be performed;
provide temperature control and general illumination (regular and emergency) in
rooms in which work is to be performed or Products or other items stored,
equivalent to that ordinarily furnished for similar purposes in a working
office; provide exit lights; provide water and other necessary utilities for the
proper execution of the Service.
PCS Utility Requirements--Negotiate with the power and telephone companies
------------------------
for installation of the power and telephone facilities necessary to proper
operation of the Products and/or other items being installed. The method by
which such facilities are interconnected with Seller's Products shall be
delivered to Customer sufficiently in advance of the time by which Customer must
have such facilities installed so that Customer may complete installation in a
timely manner. The type and quantity of such facilities shall be subject to
Seller's reasonable approval. Customer shall have the telephone company provide,
place, install, extend and terminate telephone facilities into the PCS; line up
and test the telephone company facilities outside and inside the PCS; and
provide to Seller copies of the test results prior to Seller's commencing
integration testing of the PCS.
Material Furnished by Customer--New or used material furnished by Customer
------------------------------
shall be in such condition that it requires no material repair and no material
adjustment or test effort in excess of that normal for new equipment. Customer
assumes all responsibility for the proper functioning of such material. Customer
shall also provide the necessary information for Seller to properly Install such
material.
Furniture--provide and install all furniture.
---------
Floor Space and Storage Facilities--Provide at the cell site or switch
----------------------------------
location, where practicable, during progress of the Service, suitable and easily
accessible floor space and storage facilities (a) to permit storing major items
of Products and other material closely adjacent to where they will be used, (b)
for administrative and luncheon purposes, (c) for Seller's and its
subcontractors' employees' personal effects, and (d) for tools and property of
Seller and its subcontractors. Where the Service is to be performed outside of a
building or in a building under construction, Customer shall, in addition to the
above requirements, as appropriate, permit or secure permission for Seller and
its subcontractors to maintain at the work site, storage facilities (such as
trailers) for Products, materials
and other items and for tools and equipment needed to complete the Service.
Watch Service--For PCS, provide reasonable normal security (for cell sites,
-------------
commercial alarms) necessary to prevent admission of unauthorized persons to
building and other areas where installation Service is performed and to prevent
unauthorized removal of the Products and other items. Seller will inform
Customer as to which storage facilities at the work site Seller will keep
locked; such storage facilities will remain closed to Customer's surveillance.
Hazardous Materials Cleanup--At the conclusion of the Service, Customer
---------------------------
shall be responsible for the cleanup, removal, and proper disposal of all
Hazardous Materials present at Customer's premises that were brought onto the
premises by Customer, its subcontractors or agents .
Access to Existing Facilities--Customer shall permit Seller reasonable use
-----------------------------
of such portions of the existing plant or equipment as are necessary for the
proper completion of such tests as require coordination with existing
facilities. Such use shall not interfere with the Customer's normal maintenance
of equipment.
Grounds--Customer shall provide access to suitable and isolated building
-------
ground as required for Seller's standard grounding of equipment. Where
installation is outside or in a building under construction, Customer shall also
furnish lightning protection ground.
Requirements for Customer Designed Circuits--Customer shall furnish
-------------------------------------------
information covering the proper test and readjust requirements for apparatus and
requirements for circuit performance associated with circuits designed by
Customer or standard circuits modified by Customer's drawings.
Through Tests and Trunk Tests--Customer shall make required through tests
-----------------------------
and trunk tests to other offices after Seller provides its notice of completion
or notice of advanced turnover.
4.3.2 ITEMS TO BE FURNISHED BY SELLER
The following items will be furnished by Seller (if required by the
conditions of the particular Service) and the price thereof is included in
Seller's price for Service:
Protection of Equipment and Building -Seller shall provide protection for
------------------------------------
Customer's equipment and buildings during the performance of the Service and in
accordance with Seller's standard practices.
Method of Procedure--Seller shall prepare a detailed Method of Procedure
-------------------
("MOP") before starting work on live equipment. Customer shall review the MOP
and any requested changes shall be negotiated. Customer shall give Seller
written acceptance of the MOP prior to start of the work.
The following items will be furnished by Seller if requested by Customer,
but Customer will be billed and shall pay for them in addition to Seller's
standard or firm quoted price for the Services:
Protection of Building and Equipment--Seller may provide protection of
------------------------------------
buildings and equipment in accordance with special practices of Customer
differing from Seller's standard practices.
Maintenance--Maintenance of Products, Software and other items from
-----------
completion of installation until date of acceptance.
Locally Purchased Items--Purchase of items indicated by Seller's
-----------------------
specifications as needing to be purchased locally.
Readjusting Apparatus--Seller may provide readjustment (in excess of that
---------------------
normally required on new apparatus) of apparatus associated with relocated or
rewired circuits.
Cross-Connections (Other than to Outside Cable Terminations)--Seller may
------------------------------------------------------------
run or rerun permanent cross-connections in accordance with revised cross-
connection lists furnished by Customer.
Handling, Packing, Transportation and Disposition of Removed and Surplus
------------------------------------------------------------------------
Customer Equipment--Seller may pack, transport, and dispose of surplus and
------------------
removed Customer equipment as agreed by the parties.
Premium Time Allowances and Night Shift Bonuses--Seller may have its
-----------------------------------------------
Services personnel work premium time and night shifts. To the extent that such
premium time and/or night shifts are needed for Seller to timely perform its
obligations under this Agreement due to Customers failure to meet its
responsibilities, Customer shall reimburse Seller for the costs of said premium
time and/or night shifts.
Emergency Lighting System--Seller may provide new emergency lighting system
-------------------------
(other than the original ceiling mounted stumble lighting) to satisfy
illumination and safety needs of Products of certain heights.
4.4 WORK DONE BY OTHERS
Work done at the site by Customer or its other vendors or contractors shall
not interfere with Seller's performance of the installation or other Services.
If Customer or its other vendors or contractors fail to timely complete the site
readiness or if Customer's or its other vendors or contractors' work interferes
with Seller's performance, the scheduled completion date of Seller's Services
under this agreement shall be extended as necessary to compensate for such delay
or interference and Customer shall reimburse Seller for any actual direct and
reasonable expenses directly resulting from such delay or interference.
4.5 SERVICES WARRANTIES
a. Seller warrants to Customer only, that Services will be performed in a
careful and workmanlike manner and in accordance with Seller's
specifications or those referenced in the order and with accepted
practices in the community in which such Services are performed, using
material free from defects except where such material is specified or
provided by Customer. If Services prove to be not so performed and if
Customer notifies Seller, with respect to engineering, installation,
or repair Services, within a one (1) year period commencing on the
date of completion of the Service, and with respect to other Services,
as identified by Customer in writing, Seller, at its option, either
will correct the defective or nonconforming Service or render a full
or prorated refund or credit based on the original charge for the
Services.
b. Customer shall deliver to Seller RF design for each of the Markets it
elects to deploy. In accordance with Attachment D, Seller will review
and comment to Customer on each RF design within twenty (20) business
days following receipt thereof from the Customer.
c. Where Seller performs engineering or installation Services as part of
a combined engineering, furnishing, and installation order, the one
(1) year
period referenced above shall commence on completion of the
installation Service.
d. THE FOREGOING SERVICES WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL
OTHER EXPRESS AND IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY SHALL BE SELLER'S OBLIGATION TO
MAKE CORRECTIONS OR GIVE A CREDIT OR REFUND AS SET FORTH ABOVE IN THIS
WARRANTY.
e. With respect to turnkey services, consultation services, and other
services not identified in (a) above, the applicable warranty
provisions will be negotiated on a case by case basis.
5. ARTICLE V
ENTIRE AGREEMENT AND EXECUTION
5.1 ENTIRE AGREEMENT
The terms and conditions contained in this Agreement supersede all prior
oral or written understanding's between the parties with respect to the subject
matter hereof and constitute the entire agreement of the parties with respect to
such subject matter. Such terms and conditions shall not be modified or amended
except by a writing signed by authorized representatives of both parties.
5.2 COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be an
original but both of which together shall constitute one instrument. Each
counterpart may consist of a number of copies hereof, each signed by less than
all, but together signed by all, of the parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives on the date(s) indicated.
TELECORP PCS, INC. LUCENT TECHNOLOGIES INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ [SIGNATURE ILLEGIBLE]
----------------------- -------------------------
Name: Xxxxxx X. Xxxxx Name:
--------------------- -----------------------
Title: CEO Title:
-------------------- ----------------------
Date: May 12, 1998 Date: May 12, 1998
--------------------- -----------------------
ATTACHMENT A
TELECORP
PRICING SUMMARY
Total all Markets
--------------------------------------------------------------------------------------------------------------------------
1998 1999 2000 2001
Component QUANTITY PRICE QUANTITY PRICE QUANTITY PRICE QUANTITY PRICE
--------------------------------------------------------------------------------------------------------------------------
TYPE I 45 $ 7,257,420 25 $ 3,225,655 60 $ 7,500,000 50 $ 6,250,000
TYPE I GROWTH 30 23 $ 1,012,000 13 $ 572,000 18 $ 792,000
TYPE II 15 $ 2,038,740 55 $ 7,475,380 40 $ 4,600,000 25 $ 2,875,000
TYPE III 410 $ 74,408,660 115 $20,496,240 50 $ 7,250,000 30 $ 4,350,000
BTS ENG. & INSTALL 470 $ 3,532,625 195 $ 1,565,113 150 N/A 105 N/A
FILTER REPLACEMENT E&I $ 46,750 $ 178,500
DUPLEXER DEPLOYMENT $ 300,000
OSF $ 300,000
BTS OPTIMIZATION 470 Incl. 195 150 105
BTS TRANSPORT & DELIVERY 470 $ 799,000 195 $ 331,500 150 $ 255,000 105 $ 178,500
EXPANSION RADIOS 885 $ 2,885,625 2,190 $23,756,800 1,450 $12,325,000 1,550 $12,090,000
MSC
5 ESS 5 $ 0 $ 0 $ 1,111,781 $ 748,940
ACCESS MANAGER 5 $ 0 $ 0 $ 2,553,858 $ 1,282,176
OPTIONAL SOFTWARE $ 20,000,000 $ 13,320 $ 474,600 $ 767,706
MSC B&I $ 2,434,400 $ 110,000 $ 305,000 $ 190,000
MSC POWER with Backup $ 925,000 $ 0 $ 150,000 $ 75,000
PROJECT MGMT $ 900,000 $ 0 $ 0 $ 0
BTS SPARES $ 408,284 $ 25,000 $ 25,000 $ 25,000
MSC SPARES $ 1,957,176 $ 0 $ 0 $ 0
ANNUAL BTS FEE 470 $ 0 195 $ 0 150 $ 917,700 105 $ 1,124,700
ANNUAL MSC FEE 5 $ 0 5 $ 0 5 $ 1,440,000 5 $ 1,440,000
NETWORK MGMT
AUTOSPACE $ 90,000 Incl. Incl. Incl.
NOC1 $ 600,483 $ 105,000 $ 105,000 $ 73,200
BILLDATS $ 567,120 $ 93,780 $ 93,780 $ 62,520
TRAINING Incl. Incl. $ 20,000 $ 20,000
DOCUMENTATION Incl. Incl. Incl. Incl.
INSTALLATION TEST EQUIP. $ 25,000 Incl. $ 100,000 N/A
RF AUDIT $ 1,503,250 N/A N/A N/A
RS&R $ 2,000,000
ONGOING TECHNICAL SUPPORT Incl. Incl. Incl. Incl.
(1-800 NUMBER)
SYSTEM INTEGRATION $ 400,000
OTA* Incl. Incl. Incl. Incl.
NEW MARKET INCENTIVE* ($26,000,000) $ 178,500
------------------------------------------------------------------------------------------------
TOTAL $ 95,439,533 $68,211,788 $39,799,719 $34,344,744
================================================================================================
--------------------------------------------------------------------------------------------------------------------------
*First Market=$2m. *Second Market=$3m. *Third Market=$4m. *Fourth Market=$6m. *Fifth Market=$9m.
------------------------------------------------------------------------------------
2002 TOTAL
Component QUANTITY PRICE QUANTITY PRICE
------------------------------------------------------------------------------------
TYPE I 35 $ 4,375,000 215 $ 28,608,075
TYPE I GROWTH 25 $ 1,100,000 79 $ 3,476,000
TYPE II 20 $ 2,300,000 155 $ 19,289,120
TYPE III 25 $ 3,625,000 630 $ 110,129,900
BTS ENG. & INSTALL 80 N/A 665 $ 5,097,736
FILTER REPLACEMENT E&I
DUPLEXER DEPLOYMENT
OSF
BTS OPTIMIZATION 80 1,000
BTS TRANSPORT & DELIVERY 80 $ 136,000 1,000 $ 1,700,000
EXPANSION RADIOS 1,950 $14,625,000 8,025 $ 65,684,425
MSC
5 ESS $ 608,013 5 $ 2,468,734
ACCESS MANAGER $ 1,009,650 5 $ 4,845,684
OPTIONAL SOFTWARE $ 1,038,850 0 $ 22,294,478
MSC B&I $ 168,000 0 $ 3,207,400
MSC POWER with Backup $ 60,000 0 $ 1,210,000
PROJECT MGMT $ 0 0 $ 900,000
BTS SPARES $ 25,000 0 $ 568,284
MSC SPARES $ 0 0 $ 1,957,176
ANNUAL BTS FEE 80 $ 1,269,600 1,000 $ 3,312,000
ANNUAL MSC FEE 5 $ 1,440,000 5 $ 4,320,000
NETWORK MGMT
AUTOSPACE Incl. $ 90,000
NOC1 $ 73,200 $ 956,883
BILLDATS $ 62,520 $ 879,720
TRAINING $ 20,000 $ 60,000
DOCUMENTATION Incl. Incl.
INSTALLATION TEST EQUIP. N/A $ 125,000
RF AUDIT N/A 0 $ 1,503,250
RS&R $ 3,200,000 0 $ 5,200,000
ONGOING TECHNICAL SUPPORT Incl. Incl.
(1-800 NUMBER)
SYSTEM INTEGRATION
OTA* Incl. Incl.
NEW MARKET INCENTIVE* ($ 26,178,500)
-----------------------------------------------
TOTAL $36,136,833 $ 261,788,367
===============================================
------------------------------------------------------------------------------------
*First Market=$2m.
---------------------------------------------------------------------------------------------------------------------------------
TELECORP
PRICING SUMMARY
Total all Missouri
---------------------------------------------------------------------------------------------------------------------------------
1998 1999 2000 2001
Component QUANTITY PRICE QUANTITY PRICE QUANTITY PRICE QUANTITY PRICE
---------------------------------------------------------------------------------------------------------------------------------
TYPE I 15 $ 2,419,140 15 $ 2,419,140 10 $ 1,250,000 5 $ 625,000
TYPE I GROWTH $ 0 8 $ 352,000 8 $ 352,000 5 $ 220,000
TYPE II 15 $ 2,038,740 15 $ 2,038,740 5 $ 575,000 5 $ 575,000
TYPE III 20 $ 3,679,520 5 $ 919,880 5 $ 725,000 0 $ 0
BTS ENG. & INSTALL. 50 $ 353,375 35 $ 291,613 20 N/A 10 N/A
BTS OPTIMIZATION 50 Incl. 35 20 10
BTS TRANSPORT & DELIVERY 50 $ 85,000 35 $ 59,500 20 $ 34,000 10 $ 17,000
EXPANSION RADIOS 25 $ 320,625 100 $ 1,218,400 100 $ 850,000 100 $ 780,000
MSC
5 ESS 1 $ 0 $ 0 $ 10,037 $ 35,489
ACCESS MANAGER 1 $ 0 $ 0 $ 256,467 $ 62,646
OPTIONAL SOFTWARE $ 4,000,000 $ 90,240 $ 203,041 $ 328,652
MSC B&I $ 486,880 $ 22,000 $ 61,000 $ 38,000
MSC POWER with Backup $ 185,000 $ 0 $ 30,000 $ 15,000
PROJECT MGMT $ 180,000 $ 0 $ 0 $ 0
BTS SPARES $ 93,657 $ 5,000 $ 5,000 $ 5,000
MSC SPARES $ 391,435 $ 0 $ 0 $ 0
ANNUAL BTS FEE 50 $ 0 35 $ 0 20 $ 117,300 10 $ 144,900
ANNUAL MSC FEE 1 $ 0 1 $ 0 1 $ 288,000 1 $ 288,000
NETWORK MGMT
AUTOPACE
NOC 1
BILLDATS
TRAINING Incl. Incl. $ 4,000 $ 4,000
DOCUMENTATION Incl. Incl. Incl. Incl.
INSTALLATION TEST EQUIP. $ 5,000 Incl. $ 20,000 N/A
RF AUDIT $ 310,000 N/A N/A N/A
RS&R $ 400,000
ONGOING TECHNICAL SUPPORT Incl. Incl. Incl. Incl.
(1-800 NUMBER)
OTA* Incl. Incl. Incl. Incl.
NEW MARKET INCENTIVE*
($2,000,000)
-----------------------------------------------------------------------------------------------------
TOTAL $ 12,548,372 $ 7,416,513 $ 4,780,845 $ 3,538,687
=====================================================================================================
---------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------
2002 TOTAL
Component QUANTITY PRICE QUANTITY PRICE
-----------------------------------------------------------------------------
TYPE I 5 $ 625,000 50 $ 7,338,280
TYPE I GROWTH 2 $ 88,000 23 $ 1,012,000
TYPE II 0 $ 0 40 $ 5,227,480
TYPE III 0 $ 0 30 $ 5,324,400
BTS ENG. & INSTALL. 5 N/A 665 $ 644,988
BTS OPTIMIZATION 5 120
BTS TRANSPORT & DELIVERY 5 $ 8,500 120 $ 204,000
EXPANSION RADIOS 100 $ 750,000 425 $ 3,919,025
MSC
5 ESS $ 223,707 1 $ 269,233
ACCESS MANAGER $ 176,808 1 $ 495,921
OPTIONAL SOFTWARE $ 469,623 0 $ 5,091,556
MSC B&I $ 33,600 0 $ 641,480
MSC POWER with Backup $ 12,000 0 $ 242,000
PROJECT MGMT $ 0 0 $ 180,000
BTS SPARES $ 5,000 0 $ 113,657
MSC SPARES $ 0 0 $ 391,435
ANNUAL BTS FEE 5 $ 158,700 120 $ 420,900
ANNUAL MSC FEE 1 $ 288,000 1 $ 864,000
NETWORK MGMT
AUTOPACE
NOC 1
BILLDATS
TRAINING $ 4,000 $ 12,000
DOCUMENTATION Incl. Incl.
INSTALLATION TEST EQUIP. N/A $ 25,000
RF AUDIT N/A 0 $ 310,000
RS&R $ 640,000 0 $ 1,040,000
ONGOING TECHNICAL SUPPORT Incl. Incl.
(1-800 NUMBER)
OTA* Incl. Incl.
NEW MARKET INCENTIVE* ($ 2,000,000)
--------------------------------------------
TOTAL $ 3,482,938 $ 31,767,354
============================================
-----------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
TELECORP
PRICING SUMMARY
Total New Orleans
--------------------------------------------------------------------------------------------------------------------------
1998 1999 2000
Component QUANTITY PRICE QUANTITY PRICE QUANTITY PRICE
--------------------------------------------------------------------------------------------------------------------------
TYPE I 0 $ 0 0 $ 0 15 $1,875,000
TYPE I GROWTH $ 0 0 $ 0 0 $ 0
TYPE II 0 $ 0 10 $ 1,359,160 10 $1,150,000
TYPE III 110 $ 19,896,860 40 $ 7,245,540 15 $2,175,000
BTS BNG. & INSTALL. 110 $ 840,125 50 $ 372,375 40 N/A
FILTER REPLACEMENT E&I $ 46,750 $ 68,000
BTS OPTIMIZATION 110 Incl. 50 40
BTS TRANSPORT & DELIVERY 110 $ 187,000 50 $ 85,000 40 $ 68,000
EXPANSION RADIOS 710 $ 641,250 740 $ 6,092,000 0 $ 0
MSC
5 ESS 1 $ 0 $ 0 $ 412,312
ACCESS MANAGER 1 $ 0 $ 0 $ 664,620
OPTIONAL SOFTWARE $ 4,000,000 $ 90,240 $ 203,041
MSC B&I $ 486,880 $ 22,000 $ 61,000
MSC POWER with Backup $ 185,000 $ 0 $ 30,000
PROJECT MGMT $ 180,000 $ 0 $ 0
BTS SPARES $ 93,657 $ 5,000 $ 5,000
MSC SPARES $ 391,435 $ 0 $ 0
ANNUAL BTS FEE 110 $ 0 50 $ 0 40 $ 220,800
ANNUAL MSC FEE 1 $ 0 1 $ 0 1 $ 288,000
NETWORK MGMT
AUTOPACE
NOC 1
BILLDATS
TRAINING Incl. Incl. $ 4,000
DOCUMENTATION Incl. Incl. Incl.
INSTALLATION TEST EQUIP. $ 5,000 Incl. $ 20,000
RF AUDIT $ 310,000 N/A N/A
RS&R
ONGOING TECHNICAL SUPPORT Incl. Incl. Incl.
(1-800 NUMBER)
OTA* Incl. Incl. Incl.
NEW MARKET INCENTIVE*
($ 3,000,000)
------------------------------------------------------------------------------------------
TOTAL $ 24,263,957 $18,339,316 $7,176,773
==========================================================================================
--------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
2001 2002 TOTAL
Component QUANTITY PRICE QUANTITY PRICE QUANTITY PRICE
-----------------------------------------------------------------------------------------------------------------------
TYPE I 15 $1,875,000 10 $1,250,000 40 $ 5,000,000
TYPE I GROWTH 8 $ 352,000 8 $ 352,000 16 $ 704,000
TYPE II 5 $ 575,000 5 $ 575,000 30 $ 3,659,160
TYPE III 10 $1,450,000 10 $1,450,000 185 $32,217,400
BTS BNG. & INSTALL. 30 N/A 25 N/A 665 $ 1,212,500
FILTER REPLACEMENT E&I
BTS OPTIMIZATION 30 25 255
BTS TRANSPORT & DELIVERY 30 $ 51,000 25 $ 42,500 255 $ 433,500
EXPANSION RADIOS 100 $ 780,000 500 $3,750,000 2,050 $11,263,250
XXX
0 ESS $ 55,206 $ 317,987 1 $ 785,505
ACCESS MANAGER $ 326,268 $ 245,337 1 $ 1,236,225
OPTIONAL SOFTWARE $ 328,652 $ 469,623 0 $ 5,091,556
MSC B&I $ 38,000 $ 33,600 0 $ 641,480
MSC POWER with Backup $ 15,000 $ 12,000 0 $ 242,000
PROJECT MGMT $ 0 $ 0 0 $ 180,000
BTS SPARES $ 5,000 $ 5,000 0 $ 113,657
MSC SPARES $ 0 $ 0 0 $ 391,435
ANNUAL BTS FEE 30 $ 276,000 25 $ 317,400 255 $ 814,200
ANNUAL MSC FEE 1 $ 288,000 1 $ 288,000 1 $ 864,000
NETWORK MGMT
AUTOPACE
NOC 1
BILLDATS
TRAINING $ 4,000 $ 4,000 $ 12,000
DOCUMENTATION Incl. Incl. Incl.
INSTALLATION TEST EQUIP. N/A N/A $ 25,000
RF AUDIT N/A N/A 0 $ 310,000
RS&R $ 400,000 $ 640,000 0 $ 1,040,000
ONGOING TECHNICAL SUPPORT Incl. Incl. Incl.
(1-800 NUMBER)
OTA* Incl. Incl. Incl.
NEW MARKET INCENTIVE* ($ 3,000,000)
-------------------------------------------------------------------------------------
TOTAL $4,819,126 $9,752,447 $63,234,868
=====================================================================================
-----------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
TELECORP
PRICING SUMMARY
Total Little Rock
--------------------------------------------------------------------------------------------------------------------------------
1998 1999 2000 2001
Component QUANTITY PRICE QUANTITY PRICE QUANTITY PRICE QUANTITY PRICE
--------------------------------------------------------------------------------------------------------------------------------
TYPE I $ 0 0 $ 0 10 $1,250,000 10 $1,250,000
TYPE I GROWTH $ 0 0 $ 0 0 $ 0 0 $ 0
TYPE II 0 $ 0 10 $ 1,359,160 5 $ 575,000 5 $ 575,000
TYPE III 80 $ 14,407,580 30 $ 5,208,780 5 $ 725,000 5 $ 725,000
BTS ENG. & INSTALL. 80 $ 611,000 40 $ 296,000 20 N/A 20 N/A
FILTER REPLACEMENT E&I $ 51,000
BTS OPTIMIZATION 80 Incl. 40 20 20
BTS TRANSPORT & DELIVERY 80 $ 136,000 40 $ 68,000 20 $ 34,000 20 $ 34,000
EXPANSION RADIOS 50 $ 641,250 350 $ 4,264,400 350 $2,975,000 350 $2,730,000
MSC
5 ESS 1 $ 0 $ 0 $ 13,622 $ 239,480
ACCESS MANAGER 1 $ 0 $ 0 $ 335,649 $ 186,825
OPTIONAL SOFTWARE $ 4,000,000 $ 90,240 $ 203,041 $ 328,652
MSC B&I $ 486,880 $ 22,000 $ 61,000 $ 38,000
MSC POWER with Backup $ 185,000 $ 0 $ 30,000 $ 15,000
PROJECT MGMT $ 180,000 $ 0 $ 0 $ 0
BTS SPARES $ 93,657 $ 5,000 $ 5,000 $ 5,000
MSC SPARES $ 391,435 $ 0 $ 0 $ 0
ANNUAL BTS FEE 80 $ 0 40 $ 0 20 $ 165,600 20 $ 193,200
ANNUAL MSC FEE 1 $ 0 1 $ 0 1 $ 288,000 1 $ 288,000
NETWORK MGMT
AUTOPACE
NOC 1
BILLDATS
TRAINING Incl. Incl. $ 4,000 $ 4,000
DOCUMENTATION Incl. Incl. Incl. Incl.
INSTALLATION TEST EQUIP. $ 5,000 Incl. $ 20,000 N/A
RF AUDIT $ 310,000 N/A N/A N/A
RS&R $ 400,000
ONGOING TECHNICAL SUPPORT Incl. Incl. Incl. Incl.
(1-800 NUMBER)
OTA* Incl. Incl. Incl. Incl.
NEW MARKET INCENTIVE* ($4,000,000)
--------------------------------------------------------------------------------------------------------------------------------
TOTAL $ 17,447,802 $11,364,580 $6,684,912 $7,012,157
==================================================================================================
--------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
2002 TOTAL
Component QUANTITY PRICE QUANTITY PRICE
-------------------------------------------------------------------------------
TYPE I 5 $ 625,000 25 $ 3,125,000
TYPE I GROWTH 5 $ 220,000 5 $ 220,000
TYPE II 5 $ 575,000 25 $ 3,084,160
TYPE III 5 $ 725,000 125 $ 21,791,360
BTS BNG. & INSTALL. 15 N/A 665 $ 907,000
FILTER REPLACEMENT E&I
BTS OPTIMIZATION 15 175
BTS TRANSPORT & DELIVERY 15 $ 25,500 175 $ 297,500
EXPANSION RADIOS 350 $2,625,000 1,450 $ 13,235,650
XXX
0 ESS $ 17,565 1 $ 270,667
ACCESS MANAGER $ 163,611 1 $ 686,085
OPTIONAL SOFTWARE $ 469,623 0 $ 5,091,556
MSC B&I $ 33,600 0 $ 641,480
MSC POWER with Backup $ 12,000 0 $ 242,000
PROJECT MGMT $ 0 0 $ 180,000
BTS SPARES $ 5,000 0 $ 113,657
MSC SPARES $ 0 0 $ 391,435
ANNUAL BTS FEE 15 $ 220,800 175 $ 579,600
ANNUAL MSC FEE 1 $ 288,000 1 $ 864,000
NETWORK MGMT
AUTOPACE
NOC 1
BILLDATS
TRAINING $ 4,000 $ 12,000
DOCUMENTATION Incl. Incl.
INSTALLATION TEST EQUIP. N/A $ 25,000
RF AUDIT N/A 0 $ 310,000
RS&R $ 640,000 0 $ 1,040,000
ONGOING TECHNICAL SUPPORT Incl. Incl.
(1-800 NUMBER)
OTA* Incl. Incl.
NEW MARKET INCENTIVE* ($4,000,000)
-------------------------------------------------
TOTAL $6,649,699 $ 49,108,150
=================================================
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
TELECORP
PRICING SUMMARY
Total Memphis
-------------------------------------------------------------------------------------------------------------------------------
1998 1999 2000 2001
Component QUANTITY PRICE QUANTITY PRICE QUANTITY PRICE QUANTITY PRICE
-------------------------------------------------------------------------------------------------------------------------------
TYPE I 0 $ 0 0 $ 0 15 $ 1,875,000 10 $1,250,000
TYPE I GROWTH $ 0 0 $ 0 0 $ 0 0 $ 0
TYPE II 0 $ 0 10 $ 1,359,160 10 $ 1,150,000 5 $ 575,000
TYPE III 100 $ 18,087,100 20 $ 3,472,520 15 $ 2,175,000 10 $1,450,000
BTS BNG. & INSTALL. 100 $ 763,750 30 $ 219,625 40 N/A 25 N/A
FILTER $ 59,500
REPLACEMENT E&I
BTS OPTIMIZATION 100 Incl. 30 40 25
BTS TRANSPORT & DELIVERY 100 $ 170,000 30 $ 51,000 40 $ 68,000 25 $ 42,500
EXPANSION RADIOS 50 $ 641,250 500 $ 6,092,000 500 $ 4,250,000 500 $3,900,000
MSC
5 ESS 1 $ 0 $ 0 $ 256,329 $ 340,257
ACCESS MANAGER 1 $ 0 $ 0 $ 561,588 $ 504,348
OPTIONAL $ 4,000,000 $ 90,240 $ 203,041 $ 328,652
SOFTWARE
MSC B&I $ 486,880 $ 22,000 $ 61,000 $ 38,000
MSC POWER with Backup $ 185,000 $ 0 $ 30,000 $ 15,000
PROJECT MGMT $ 180,000 $ 0 $ 0 $ 0
BTS SPARES $ 93,657 $ 5,000 $ 5,000 $ 5,000
MSC SPARES $ 391,435 $ 0 $ 0 $ 0
ANNUAL BTS FEE 100 $ 0 30 $ 0 40 $ 179,400 25 $ 234,600
ANNUAL MSC FEE 1 $ 0 1 $ 0 1 $ 288,000 1 $ 288,000
NETWORK MGMT
AUTOPACE
NOC 1
BILLDATS
TRAINING Incl. Incl. $ 4,000 $ 4,000
DOCUMENTATION Incl. Incl. Incl. Incl.
INSTALLATION $ 5,000 Incl. $ 20,000 N/A
TEST EQUIP.
RF AUDIT $ 310,000 N/A N/A N/A
RS&R $ 400,000
ONGOING TECHNICAL SUPPORT Incl. Incl. Incl. Incl.
(1-800 NUMBER)
OTA* Incl. Incl. Incl. Incl.
NEW MARKET
INCENTIVE* ($6,000,000)
---------------------------------------------------------------------------------------------------
TOTAL $ 19,314,072 $11,371,045 $11,126,358 $9,375,357
===================================================================================================
-------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
2002 TOTAL
Component QUANTITY PRICE QUANTITY PRICE
-----------------------------------------------------------------------------
TYPE I 10 $1,250,000 35 $ 4,375,000
TYPE I GROWTH 5 $ 220,000 5 $ 220,000
TYPE II 5 $ 575,000 30 $ 3,659,160
TYPE III 5 $ 725,000 150 $25,909,620
BTS BNG. & INSTALL. 20 N/A 665 $ 983,375
FILTER
REPLACEMENT E&I
BTS OPTIMIZATION 20 215
BTS TRANSPORT & DELIVERY 20 $ 34,000 215 $ 365,500
EXPANSION RADIOS 500 $3,750,000 2,050 $18,633,250
XXX
0 ESS $ 24,377 1 $ 620,963
ACCESS MANAGER $ 241,203 1 $ 1,307,139
OPTIONAL $ 469,623 0 $ 5,091,556
SOFTWARE
MSC B&I $ 33,000 0 $ 641,480
MSC POWER with Backup $ 12,000 0 $ 242,000
PROJECT MGMT $ 0 0 $ 180,000
BTS SPARES $ 5,000 0 $ 113,657
MSC SPARES $ 0 0 $ 391,435
ANNUAL BTS FEE 20 $ 269,100 215 $ 683,100
ANNUAL MSC FEE 1 $ 288,000 1 $ 864,000
NETWORK MGMT
AUTOPACE
NOC 1
BILLDATS
TRAINING $ 4,000 $ 12,000
DOCUMENTATION Incl. Incl.
INSTALLATION N/A $ 25,000
TEST EQUIP.
RF AUDIT N/A 0 $ 310,000
RS&R $ 640,000 0 $ 1,040,000
ONGOING TECHNICAL SUPPORT Incl. Incl.
(1-800 NUMBER)
OTA* Incl. Incl.
NEW MARKET
INCENTIVE* ($6,000,000)
-----------------------------------------------
TOTAL $8,540,903 $59,668,235
===============================================
-----------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
TELECORP
PRICING SUMMARY
Total New England
--------------------------------------------------------------------------------------------------------------------------
1998 1999 2000 2001
Component QUANTITY PRICE QUANTITY PRICE QUANTITY PRICE QUANTITY PRICE
--------------------------------------------------------------------------------------------------------------------------
TYPE I 30 $ 4,838,280 10 $ 1,612,760 10 $ 1,250,000 10 $1,250,000
TYPE I GROWTH $ 0 15 $ 660,000 5 $ 220,000 5 $ 220,000
TYPE II 0 $ 0 10 $ 1,359,760 10 $ 1,150,000 5 $ 575,000
TYPE III 100 $ 18,397,600 10 $ 1,839,760 10 $ 1,450,000 5 $ 725,000
BTS BNG. &
INSTALL. 130 $ 964,375 30 $ 309,125 30 N/A 20 N/A
BTS OPTIMIZATION 130 Incl. 30 30 20
BTS TRANSPORT &
DELIVERY 130 $ 221,000 30 $ 51,000 30 $ 51,000 20 $ 34,000
EXPANSION RADIOS 50 $ 641,250 500 $ 6,092,000 500 $ 4,250,000 500 $3,900,000
MSC
5 ESS 1 $ 0 $ 0 $ 419,481 $ 78,507
ACCESS MANAGER 1 $ 0 $ 0 $ 735,534 $ 202,089
OPTIONAL
SOFTWARE $ 4,000,000 $ 90,240 $ 203,041 $ 328,652
MSC B&I $ 486,880 $ 22,000 $ 61,000 $ 38,000
MSC POWER with
Backup $ 185,000 $ 0 $ 30,000 $ 15,000
PROJECT MGMT $ 180,000 $ 0 $ 0 $ 0
BTS SPARES $ 93,657 $ 5,000 $ 5,000 $ 5,000
MSC SPARES $ 391,435 $ 0 $ 0 $ 0
ANNUAL BTS FEE 130 $ 0 30 $ 0 30 $ 220,800 20 $ 262,200
ANNUAL MSC FEE 1 $ 0 1 $ 0 1 $ 288,000 1 $ 288,000
NETWORK MGMT
AUTOPACE
NOC 1
BILLDATS
TRAINING Incl. Incl. $ 4,000 $ 4,000
DOCUMENTATION Incl. Incl. Incl. Incl.
INSTALLATION
TEST EQUIP. $ 5,000 Incl. $ 20.000 N/A
RF AUDIT $ 310,000 N/A N/A N/A
RS&R $ 400,000
ONGOING
TECHNICAL
SUPPORT Incl. Incl. Incl. Incl.
(1-800 NUMBER)
OTA* Incl. Incl. Incl. Incl.
NEW MARKET
INCENTIVE* ($ 9,000,000)
----------------------------------------------------------------------------------------------------
TOTAL $ 21,714,477 $12,041,645 $10,357,856 $8,325,448
====================================================================================================
--------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------
TELECORP
PRICING SUMMARY
Total New England
---------------------------------------------------------------------
2002 TOTAL
Component QUANTITY PRICE QUANTITY PRICE
---------------------------------------------------------------------
TYPE I 5 $ 625,000 65 $ 9,576,040
TYPE I GROWTH 5 $ 220,000 30 $ 1,320,000
TYPE II 5 $ 575,000 30 $ 3,659,760
TYPE III 5 $ 725,000 130 $23,137,360
BTS BNG. & INSTALL. 15 N/A 665 $ 1,273,500
BTS OPTIMIZATION 15 225
BTS TRANSPORT &
DELIVERY 15 $ 25,500 225 $ 382,500
EXPANSION RADIOS 500 $3,750,000 2,050 $18,633,250
XXX
0 ESS $ 24,377 1 $ 522,365
ACCESS MANAGER $ 182,691 1 $ 1,120,314
OPTIONAL
SOFTWARE $ 469,623 0 $ 5,091,556
MSC B&I $ 33,600 0 $ 641,480
MSC POWER with
Backup $ 12,000 0 $ 242,000
PROJECT MGMT $ 0 0 $ 180,000
BTS SPARES $ 5,000 0 $ 113,657
MSC SPARES $ 0 0 $ 391,435
ANNUAL BTS FEE $ 289,800 225 $ 772,800
ANNUAL MSC FEE $ 288,000 1 $ 864,000
NETWORK MGMT
AUTOPACE
NOC 1
BILLDATS
TRAINING $ 4,000 $ 12,000
DOCUMENTATION Incl. Incl.
INSTALLATION
TEST EQUIP. N/A $ 25,000
RF AUDIT N/A 0 $ 310,000
RS&R $ 640,000 0 $ 1,040,000
ONGOING
TECHNICAL
SUPPORT Incl. Incl.
(1-800 NUMBER)
OTA* Incl. Incl.
NEW MARKET
INCENTIVE* ($9,000,000)
--------------------------------------------------
TOTAL $7,869,591 $60,309,017
==================================================
---------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
BASE STATION PACKAGE
----------------------------------------------------------------------------------------------------
TYPE I TYPE II TYPE III
Base Package $126,000 $105,000 $146,700
Installation Kit $ 4,269 $ 4,269 $ 4,269
Outdoor Cabinet(s) $ 2,000 $ 2,000 $ 4,000
Power $ 15,927 $ 15,927 $ 15,927
MAU/FRU $ 7,860 $ 5,240 $ 7,860
HP ICLA $ 5,220 $ 3,480 $ 5,220
Total $161,276 $135,916 $183,976
=====================================================================
----------------------------------------------------------------------------------------------------
ATTACHMENT C
RESPONSIBILITY MATRIX
Functional Division of Responsibility
RF ENGINEERING
No. Lucent TeleCorp
--- ---------- ------------
1. Provide specifications for TDMA guard isolation requirements X
2. Prepare demand forecast for first 2 years of operation X
3. Develop coverage objectives X
Prepare coverage plan to meet objectives
4. Initial CE4 model calibration and optimization X
5. Preliminary TDMA RF design X
6. RF Evaluation X
7. Provide Link Budget and Design Criteria - TeleCorp X
8. Review and Accept Link Budget and Design Criteria X
9. Identify, qualify and secure real estate for radio base station X
sites
10. On a per sector basis, determine the following demand and radio
parameters:
(a) Number of voice channels/EPRUs per sector X
(b) Effective radiated power X
(c) Recommend antenna radiation center above ground level X
(d) Recommend initial sector/OMNI antenna and orientations X
Maximum antenna feeder loss acceptable
(e) Initial downtilt angle X
(f) Site name, site code numbers X
(g) Create base station translations based on TeleCorp input X
To load into the MSC - Site Specific Stuff - Neighbor Lists
11. Frequency coordination if required X
12. Perform field site visits to specify antenna mounting locations X
and antenna downtilts
13. Provide 2 year subscriber and demand information X
14. Generate a 2 year equipment growth plan based on subscriber and X
demand information
15. Spectrum Clearing X
16. Hand-off and performance parameter plan X
17. Provide detail reporting of progress on mutually agreed upon X
deliverables
OPTIMIZATION AND SYSTEMS PERFORMANCE
No. Lucent TeleCorp
--- ----------- -------------
1. Perform system optimization in accordance with Lucent document X
"Methods and Procedures for PCS TDMA RF Cluster Testing &
Optimization" Handbook 603, Issue 2.
2. Provide personnel, vehicles, software (data collection and post X
processing) and equipment (including positioning equipment to perform
system optimization
3. Participate in Optimization X X
4. Implement power reductions antenna downtilts and antenna X
re-orientations
5. Detailed reporting and work order tracking of the optimization X
process on a site by site basis. Reports to include maps and
histograms for coverage evaluations, dropped calls, blocked calls,
and other performance parameters as reasonable requested by owner
6. Provide access to sites for Lucent to conduct optimization activities X
and information regarding access restrictions
BASE STATION SITE CONSTRUCTION
No. Lucent TeleCorp
--- ----------- -------------
1. Provide specific technical requirements for base station design to X
Owner (based on Radio Network Design)
2. Immediate formal notification of product design changes X
3. Architectural/Engineering design for site X
4. Use Layout drawings to prepare Xxxx of Material. Xxxxxxx Xxxx of X
Material to Owner
5. Ensure that ground provide to minicell meets National Electrical Code X
Article 250
6. Preparation of tender document for site construction bids
7. Application for building permits X
8. Evaluation of construction bids X
9. Negotiations with bidders X
10. Placing order to contractors X
11. Furnish estimated "site ready for installation" date to Vendor X
12. Schedule installation X
13. Surveyor verification of initial antenna orientations X
13.B Provide Site Ready Check List X
14. Check of site ready for installation X
15. Develop punch list of outstanding civil issues X
16. Supervision of site construction X
17. Auditing contractor invoices X
17.B Review of Construction Specs X
18. Acceptance of completed construction X
19. Owner representative at site-ready inspection X
20. Perform main feed line and antenna VSWR sweeps X
21. Provide and Retrofit Existing Sites with Duplexers once GA X
22. After GA date, Install Vendor Provided DMAU X
SITE INSTALLATION/INTEGRATION
No. Lucent TeleCorp
--- ----------- -------------
1. Delivery to BTS including transportation, al lifting and hoisting, X
associated permits and coordination with landlord
2. Perform physical installation per the site cabinet installation X
manual Lucent 000-000-000, Issue 1 or latest available
3. Arrange for site access during cell install and testing X
4. Installation and test T1 facilities up to BTS platform (provide and X
insert loop around plugs as required)
4B Install DFRU X
5. Connection of T1 to BTS cabinet X
6. Teleco connection for De-xxxx to CSI X
7. Install AC services connections to power cabinet and perform power X
installation to primary and growth cabinets
8. Install tested coaxial jumpers for main feed line to cabinet RF X
interface connection. Tag jumpers with proper color code as defined
by site plan
9. Drill/bolt to platform, concrete pads, galvanize drill holes where X
needed
9A Define Alarm Configuration (normally open/closed) X X
10. Connect and test TeleCorp-provided external alarms (tower lights, AC, X
Door, etc.)
11. Make all cabinet ground connections and ensure compliance to industry X
standard
12. Evaluate and approve physical installation (Per Agreed to Punch X
list/Check list)
13. Perform PCS TDMA power up and test per Lucent installation X
engineering handbook 223 or latest issue
14. Perform cell boot from switch X
15. Perform cell diagnostic session from switch and provide a hard copy X
of the session
16. Provide switch cell diagnostics, and HEH reports X
17. Review switch cell diagnostics, and HEH reports X
18. Source and replace defective equipment during cell install and testing X
19. Provide ongoing defective component list, via cell log, for each cell X
up to system acceptance
20. Verify all components working properly with switch X
21. BTS and component level tracking equipment (For Warranty and CN X
Tracking Purposes)
22. Creation of BTS acceptable test plan X
23. Approval of BTS acceptance test plan X X
24. Perform BTS acceptance test plan X
25. Acceptance of BTS test results X
26. Create punchlist X X
27. Concurrent with final system acceptance, bring all BTS components and X
the BTS to the current standard BTS configuration that is
operationally equivalent
CIVIL CONSTRUCTION OF SWITCH FACILITIES
No. Lucent TeleCorp
--- ------ --------
1. Determine which type of air cooling system will be installed (Lucent X X
advises only based upon equipment requirements)
2. Determine overhead of floor cabling X X
3. Determine raised floor or not X X
4. Definition of technical system requirements e.g. floor space, floor X
loading, heat load, DC amperage, A/C requirement. Provide to owner
5. Definition of suitable area X
6. Evaluate possibilities and select the best one X
7. Vendor pre-survey of selected location with Owner X
8. Negotiate with site owners X
9. Finalize lease contract X
10. Civil engineering design for MSC locations X
11. Approve completed layout plan, including transmission equipment area X X
12. Define requirements for Lucent equipment grounding to conform with X
National Electrical Code Article 250
13. Install building ground system X
14. Install building and equipment ground system X X
15. Detailed installation design completed for MSC/ECP, including X
switching system demark for T1, OM&P, data circuits, modems, I/O,
etc., to be provided on CAD if available
16. Preparation of tender documents for construction bids for MSC X
locations
17. Evaluation of bids X
18. Negotiations with bidders X
19. Selection of sub-contractors X
20. Place orders to sub-contractors X
21. Supervision of site construction X
22. Auditing of contractor invoices X
23. Review and advise on completed site construction X
24. Acceptance of completed site construction X
25. Building ready inspection and acceptance with Owner X X
26. Security during construction X
27. Install fire and security systems X
28. Determine hours of reserve for emergency power X X
29. Determine fuel tank size X X
30. Provide for shipment and temporary storage equipment (Does not have X
to be in market. May be in Oklahoma City until your site is ready)
31. Prepare schedule of building ready dates for equipment locations X
SWITCH INSTALLATION
No. Lucent TeleCorp
--- ------ --------
1. Prepare market requirement questionnaire (database) e.g. cell plan, X
network plan, grade of service plan, transmission plan, numbering
plan, routing plan, network synchronization plan, signaling plan,
charging plan, services plan, operations and maintenance plan
2. Answer market requirements questionnaire X
3. Review market requirements answers and recommend changes or approve X
4. Input based AWS Feature Set X
5. Define exchange requirements data (exchange specific items of the X
market requirements) for MSC/ECP, BTS, OM&P
6. Complete ODA X
7. Vocoder Relocation X
8. Install and test all translations X
9. Approve translations X
10. Detailed switch design and dimensioning X
11. Provide erlang projections for switch dimensioning X
12. Provide floor layout based on TeleCorp Scale Floor Plan X
13. Verification of structural, HVAC, power requirements for operation X
14. Switch equipment delivery and install to Lucent provided DSX panel X
(Punch list for DSC by TeleCorp)
15. Spares inventory to be provided on site X
16. Concurrent with, and as part of final acceptance, a full accounting X
of all equipment shipped, installed, and left as spares will be
provided to TeleCorp
17. Review and approval of all equipment listed by vendor under X
accounting requirement
18. Creation of MSC/ECP acceptance test plan X
19. Approval of MSC/ECP acceptance test plan X
20. Perform final testing X
21. Final acceptance of switch X
22. Security during installation of switch, if deemed necessary X X
23. Furnish installation tools, test equipment and supplies as required X
during installation
24. Supply basic facilities, e.g. lights, power, water, sanitary, X
telephone connection
25. Engineer, design, furnish, and install DC power system X
26. Approve DC power system design X
27. Provide DC power system acceptance test plan X
28. Review and approve DC power system acceptance and test plan X
29. Perform DC power system acceptance and test plan X
ACCESS AND LEASED LINES
No. Lucent TeleCorp
---- ------ --------
1. Supply conversion formula or chart for calculating slots required for X
control and/or OSS functions for sector/OMNI cells, as a function of
number of voice channels. Specify any particular slot assignment
constraints, e.g. control must always be on Ch. 16, and other
limitations on connection of circuits if relevant to TDMA.
2. Provide interface requirement, to Network Elements, for Lucent X
Equipment
3. Obtain cost and schedule of supply of leased lines from Telco X
providers
4. Supply report to vendors with trunk and slot assignments on customer X
side of DSX demark
5. Use connectivity report to size MSC and BTS hardware and software. X
Review for equipment incompatibilities. Return acknowledgement to
Owner. Discuss problem area with Owner. Provide lead time
requirements for circuits.
6. Develop schedule of required in-service date for each circuit. Enter X
order to Telco provider. Follow up progress. If facilities schedule
cannot be met by Telco provider adjust schedule and notify vendors
7. Obtain Telco provider requirements for equipment rooms, power, X
standard connectors, levels, impedances, etc.
8. Specify and supply appropriate lease line facilities X
9. Arrange access from Telco providers for installation of leased lines X
10. Supply Owner with performance requirements for 1.5 Mb/s circuits X
11. Approve access leased line performance criteria X
12. Provide leased lines and access circuits X
13. Perform short term (1 hour) bit error rate and other line testing X
14. Review Telco provider requirement against equipment standard. Advise X
Owner of problems or incompatibilities
15. Design and furnish equipment room or space for Telco provider line X
connections. Copy layout to vendor
16. Installation of equipment for Telco provider line connections X
17. Furnish Telco provider lines up to Telco provider connector block X
(Telco provider to furnish)
18. Install cables, connectors blocks, and protectors (if required) from X
network equipment to Owner supplied DDF and CSUs. Tag with identity
19. Design, furnish and install connection between the network equipment X
(MSC) and the point of connection (DSX). Provide cross-connect
elevation diagrams and record to Owner (TeleCorp have a Cross-Connect
Plan)
20. Supply and install all demark equipment at MSC, Includes i.e. DS1, X
DSX, V.35, RS232, DSX, patchmates, modem eliminators, and all other
connection requirements on the vendor side of DSX demark
21. Provide cross connects from vendor DSX demark to TeleCorp DSX demark X
ACCESS CIRCUITS (MSC-PSTN)
No. Lucent TeleCorp
--- ------ --------
1. Identify voice channel, signaling, and data service requirements by X
MSC, by year
2. Determine destination/origin of traffic X
3. Specify performance/reliability/connectivity requirements and X
standards for the network
4. Obtain cost and schedule of supply of access lines from Telco X
provider. Negotiate charges and due dates
5. Review MSC-PSTN Network Design X
6. Supply data to vendor's access configuration X
7. Use access data to size MSC hardware and software. Review for X
equipment incompatibilities. Discuss problem areas with Owner.
Supply configuration reports to Owner
8. Develop schedule of required in service dates for access circuits at X
each MSC. Enter order with Telco provider and follow up on progress.
If facilities schedule cannot be met, adjust schedule and notify
vendors
9. Review Telco provider requirements against equipment standards. X
Inform Owner of problems or incompatibilities
10. Design equipment space for line connections X
11. Furnish equipment and copy of layout to customer X
12. Specify and supply appropriate connecting facilities X
13. Arrange access for Telco provider installation X
14. Supply Owner with BER objectives and other line parameters necessary X
for guaranteed performance levels
15. Perform short term (approx. 1 hour) BER and other line testing if X
requested by Vendor. Supply report to Vendor if problems are observed
16. Supply vendor with Telco provider power requirements X
17. Furnish battery power to Telco provider. Incorporate Telco provider X
battery and connection requirements in equipment order
18. Furnish Telco provider lines up to Telco provider connector block X
(Telco provider to finish)
19. Install cables, connectors, blocks and protectors (if required), form X
network equipment to Telco provider connector block. Tag cables and
DDF with identify. Design, furnish and install jumper connectors
between the network equipment, and the Telco provider point of
connection. Provide cross-connect record to Owner.
20. Design backhaul of transmission network X
21. Determine transmission equipment design on customer side of DSX demark X
22. Select transmission equipment vendors X
23. Negotiate prices, and obtain transmission equipment delivery X
24. Design transmission room equipment layout X
25. Provide transmission room power requirements for dimensioning of DC X
power plant
26. Engineer DC power plant to support switch and transmission
requirements
SYSTEM INTEGRATION
VENDOR PROVIDED EQUIPMENT
No. Lucent TeleCorp
--- ------ --------
1. Full integration of switches platform to
AUC X X
HLR X X
VLR X X
MSC X X
SMS-SC X X
STP X X
Billing System X X
PSTN X X
NOC1 X X
Autopace X X
Fraud System X X
ILR (GSM=IS41 Gateway) X X
OTA X X
Voice Mail X X
BTS X X
Vendor-supplied products X X
Other AWS systems X X
Other roaming partners X X
NACN X X
Customer Care X X
2. If interface doesn't presently exist, work with vendor on interface X X
specs
3. Prepare plan for testing of integration of Vendor equipment and X X
provide to owner for review
4. Review test plan, agree to changes, and approve X X
5. Perform integration tests of interfaces defined above X X
6. Customer to be present during integration test X
7. Record results of tests and provide Owner X
8. Review tests results and proceed as required X
2. Ensure participation of other vendors in integration Process.
CUSTOMER CARE SYSTEM (INCLUDING BILLING SYSTEM)
No. Lucent TeleCorp
------ ------ --------
1. Define customer care and billing requirements X
2. Define requirements on interfaces to Vendor's equipment X
3. Acceptance testing of Lucent interfaces billing platform X X
4. Review test plan, agree to changes and approve X
5. Perform interfaces tests according to test plan X
6. Record test results and provide to Owner X
7. Review and approve tests results and proceed as required
PCS TDMA TERMINALS (MAXIMUM 3 VENDORS)
No. Lucent TeleCorp
--- ------ --------
1. If Applicable, develop test plan for interface testing X X
2. If available, provide and terminal test data and results from X
Interoperability lab or field
3. Review test plan, agree to changes and approve X
4. Supply third party terminals X
5. Perform interface tests according to test plan X X
6. Record test results and provide to Owner X X
7. Review test results and proceed as required X
No. Lucent TeleCorp
--- ------ --------
1. Perform vendor commissioning tests (equipment) and record results X
(Lucent equipment)
2. Review vendor test results X
3. Prepare system acceptance test procedures (For Lucent Equipment) X
4. Review and approve system acceptance test procedures X
5. Perform system acceptance test and record results (For Lucent X
Equipment)
6. Develop punchlist detailing major and minor items X
7. Remedy all major punchlist items prior to system acceptance on all X
Lucent equipment
8. Remedy all minor punchlist items prior to final acceptance on Lucent X
equipment
9. Review test results X
10. Accept system X
11. Provide manuals, drawings and documentation for all equipment, X
software, and diagnostics provided by vendor. One complete set per
switch of hardcopy and CD-ROM required. Included are any user guides
12. Accept documentation as provided or request changes X
13. Turn-up for service X
14. Monitor performance during Acceptance Test Period X X
15. Perform corrective action as necessary for all Lucent provided X
equipment, interfaces, and protocols
16. Develop Exit Criteria X X
No. Lucent TeleCorp
--- ------ --------
1. Develop training packages for engineering and operations in English X
2. Review training packages X
3. Deliver training X
4. Determine recommended spares requirements X
5. Approve spares recommendations X
6. Provide spares X
7. Spares provided by vendor at system acceptance to be operationally X
equivalent of latest revision level
8. Establish return and repair procedures X
Warranty
Non-warranty
9. Review return and repair procedure-change or approve as necessary X
10. Develop test equipment recommendations for Lucent components X
11. Review and approve test equipment recommendations X
12. Order test equipment except as noted in #13 below X
13. Furnish Lucent-specific test equipment (If there is any Test X
equipment they need after we leave, get it for them and they will pay)
14. Develop proposal for technical assistance plan for hardware and X
software both on-site and remote with resources defined in Section
1.10
15. Review technical assistance plan and approve X
16. Establish technical assistance if ordered by Owner X
17. Develop installation plans for each location and entity (pert or bar X
chart) (MS Project Plan and Access Database)
Site Ready Check List
The following items are required to install a typical PCS TDMA mini-cell
1. A/C Power-or generator
2. Inside construction complete
3. Antenna erection complete (Union will NOT allow work while antenna is being
erected)
4. Access to site arranged prior to Build Team dispatch
5. Site cleaned of construction materials and dust
6. POTS or cell phone provided
7. Equipment delivered to site
8. Grounding completed and per equipment specifications
9. Ancillary equipment delivered and ready at time of equipment installation
(Batteries; Rectifiers; FIF; cable racks; etc.)
The following items are required to integrate (intra cell test) a PCS TDMA mini-
cell
1. Commercial A/C or commercial generator
2. T1 or Microwave facility in place and verified
3. POTS or Tellular box
4. Antennas (installed & swept)
5. Translation loaded at switch
6. Access arranged prior to Test Team dispatch.
ATTACHMENT D
RF Performance Criteria for System Acceptance
1.0 Metrics and procedures. The performance metrics defined below (section
5.0) are part of the contract. The procedures for measuring the performance
metrics shall be executed as described below. The metrics and associated
measurement techniques apply to the entire as-built TDMA system (i.e., all
clusters). Metrics assessed on a per cluster basis may be computed but are for
information only and shall not be used in assessing system acceptance.
2.0 Test setup. All tests shall be performed using test vehicles equipped with
a calibrated test mobile(s) that meet or exceed the minimum performance
specifications (TIA/EIA IS-136 and IS-137) for a TDMA mobile subscriber unit.
Test mobiles shall have fixed attenuators connected between the transceiver and
antenna to compensate for the test setup. The compensation shall be computed to
render the test data equivalent to that which would be obtained with an
operational subscriber unit under common conditions (e.g., attenuation shall be
added in order to compensate for the benefit offered by the additional gain and
height of the test vehicle antenna.). The values of any attenuators shall be
mutually agreed upon and determined via calibration procedure. No attenuators
shall be added into the mobile path to compensate for vehicle or building
penetration losses. The net value of attenuation used shall take into account
the cable loss from test vehicle antenna to test unit, as this loss would not
present in an operational subscriber unit under common conditions.
3.0 RF Design. The RF design is to be done by the Customer and audited by the
Vendor; accordingly, mutual agreement shall be reached in determining the design
service area. The design service area consists of those areas predicted via
design tools and processes to be covered. In addition, for the RF warranty to
be valid, the Vendor and the Customer shall mutually agree to all design
parameters and translations (e.g. handoff thresholds, frequency plan, C/I [ratio
of carrier to cochannel interference power], C/N [ratio of carrier to total
impairment power], BER [bit error rate], antenna orientations).
4.0 Coverage Area and Valid Data The coverage area for test shall consist of
mutually agreed upon test drive routes within the design service area (see
section 3.0). For purposes of data collection and analysis, the test drive
routes shall be divided into spatial subdivisions called geographic bins. The
bins shall be of mutually agreed size. During data collection, the
test routes shall be driven at speeds that are representative of normal
subscriber behavior. To be valid, data collected must be taken within the design
service area (see section 3.0). Only valid data shall be used in computing the
performance metrics (see section 5.0). In-building coverage via external TDMA
infrastructure shall not be tested as part of acceptance.
5.0 Performance Metrics
The following performance metrics shall be satisfied for acceptance. All test
drive data shall be collected and analyzed using Vendor's AutoPace and TEMS (or
mutually agreed equivalent) tools.
5.1 Bit Error Rate (BER). Forward and reverse links shall be characterized
separately. Data shall be averaged per geographic bin in order to obtain an
average BER score that characterizes that bin's location. Bin size must be
mutually agreed between Vendor and Buyer and need not necessarily be uniform;
however, a minimum of 5 seconds of data per bin must be used in computing the
BER score for that bin.
Of the valid data collected (see 4.0), the worst 1% of bins may be discarded.
The remaining 99% of the bins shall together constitute the non-excluded area.
The remaining average BER values for all bins shall be averaged together. For
acceptance, this system average shall not exceed 3%.
5.2 Dropped Calls. Data shall be collected and analyzed as follows. A
sequence of test calls shall be placed along the test drive routes. The number
of calls placed shall be sufficient to ensure statistical significance of the
results (i.e., at least 1,500 calls over the entire system unless mutually
agreed to be different). The duration of each call shall not exceed 100
seconds. The dropped call rate shall be the ratio of successfully originated
calls that were dropped to the total number of successfully originated calls. A
successfully originated call is defined as a call that has entered the voice
state. This definition includes drops for any reason, including handoff
failures. Only data collected within the non-excluded area (see section 5.1)
shall be included in this analysis. For acceptance, the system dropped call
rate shall be less than or equal to 1.7%.
5.3 Established Calls. Data shall be collected and analyzed as follows. A
sequence of test calls shall be placed along the test drive routes. The number
of calls placed shall be sufficient to ensure statistical significance of the
results.
The established call success rate shall be computed as the ratio of the total
number of successfully originated and terminated calls to the total number of
valid call attempts. A successfully originated/terminated call is defined as a
call that has entered the voice state. A valid origination call attempt is
defined as an origination attempt via a correctly dialed number to a non-busy
radio/number at the cell/switch. A valid termination call attempt is defined as
a termination attempt via a correctly dialed number from the switch through a
nonbusy radio to an idle test mobile. Only data collected within the non-
excluded area (see section 5.1) shall be included in this analysis. For
acceptance, the established call success rate shall meet or exceed 98%.
6.0 A link budget and associated projections of coverage probability are
included in Appendix 1. The presence of this information within this appendix
does not, explicitly or implicitly, constitute warranties on the values
provided, with the exception of values for Vendor provided equipment as
referenced in Section __ of this contract. These values are for information
only. The performance warranty is based only the performance metrics specified
above as computed on valid data collected on the test drive routes.
Appendix 1
Table 1: Probability of Service at Cell Edge (%)
---------------------------------------------------------------------
Morphology Indoor In Vehicle Outdoor
---------------------------------------------------------------------
Urban 80 99 >99
Suburban 74 94 >99
Rural 74 88 99
---------------------------------------------------------------------
Table 2: Probability of Area Coverage (%)
--------------------------------------------------------------------
Morphology Indoor In Vehicle Outdoor
---------------------------------------------------------------------
Urban 94 >99 >99
Suburban 90 99 >99
Rural 90 98 >99
-------------------------------------------------------------------
Given the following:
Recommended Base Station Balanced EIRP: 52.2 dBm (165.8W)
Recommended Base Station Transmitter Output 37.9 dBm (6.2W)
Designed signal strength at cell edge:
Urban -75dBm
Xxxxxxxx -00xXx
Xxxxx -00xXx
Standard deviation for log-normal shadowing:
Outdoor 8dB
Indoor 5dB
Vehicle 3dB
Vehicle Penetration Margin: 8dB
Building Penetration Margin:
Urban 2OdB
Xxxxxxxx x0xX
Xxxxx x0xX
ATTACHMENT E
Optional Software Pricing
-----------------------------------------------------------------------------------------------------------------
Year Pops % Cov Pops Cov Pen Subs Yearly Fee Cumm Fee
Pops
-----------------------------------------------------------------------------------------------------------------
1-Jan-99 11,100,000 0.2 2,220,000 0.0010 2,220 13,320 13,320
-----------------------------------------------------------------------------------------------------------------
1-Jan-00 11,300,000 0.4 4,520,000 0.0175 79,100 474,600 487,920
-----------------------------------------------------------------------------------------------------------------
1-Jan-01 11,373,450 0.5 5,686,725 0.0225 127,951 767,708 1,255,628
-----------------------------------------------------------------------------------------------------------------
1-Jan-02 11,447,377 0.55 6,296,058 0.0275 173,142 1,038,850 2,294,477
-----------------------------------------------------------------------------------------------------------------
1-Jan-03 11,521,785 0.6 6,913,071 0.0325 224,675 1,348,049 3,642,526
-----------------------------------------------------------------------------------------------------------------
1-Jan-04 11,596,677 0.65 7,537,840 0.0375 282,669 1,696,014 5,338,540
-----------------------------------------------------------------------------------------------------------------
1-Jan-05 11,672,055 0.66 7,703,557 0.0425 327,401 1,964,407 7,302,947
-----------------------------------------------------------------------------------------------------------------
1-Jan-06 11,747,924 0.67 7,871,109 0.0450 354,200 2,125,199 9,428,147
-----------------------------------------------------------------------------------------------------------------
1-Jan-07 11,824,285 0.67 7,922,271 0.0475 376,308 2,257,847 11,685,994
-----------------------------------------------------------------------------------------------------------------
ATTACHMENT F
TeleCorp and Lucent
New England
May 1 July 27 Aug 15 Dec 15 TBD
Feb 15 June 15 July 30 Sept 30 Nov 15 Jan 15
------------------------------------------------------------------------------------------------------------------------------------
T-Order L-Begin BTS Equip L-Duplexers T-PSTN and SS7 L-MSC Install L-Network
Number Deliveries Available Links Complete Element
Blocks Installed Integration
T-Begin MSC Civil T-Duplexer L-Begin BTS Complete
T-HLR Decision Construction Decision T-Transmission Integrations
Date Equip . Billing
Installed L-First Call
T- Data . Voice Mail
Network T-Begin T1 T-Microwave
Complete Acceptance Relo Complete . Customer
Care
. Fraud
. AT & T Core
Features
T-Begin BTS L-MSC Equip. T-MSC Civil L-Network L-New Orleans
Site Ship Complete Element Filter
Construction Integration Solution
T-MSC Power T-Begin Complete Installed
Room Transmission
Complete Equipment . HLR T-NOC Complete
Install
. SMSC T-Launch Sites
L-Begin MSC Constrution
Equip. Install . NACN Complete
. Autospace T-Lockdown of
Launch Date
(Launch Minus
60 Days)
XXX
XXX
----------------------------------------------
L-Launch Sites
Optimization
Complete
T-Begin System
Acceptance
Testing
T-Begin 30 Day
Stable
Period
(Launch Minus
30 Days)
T-System
Acceptance
* Launch *
T-TeleCorp Responsibility
L-Lucent Responsibility
ATTACHMENT G
ATTACHMENT G
Engineer's Notes
This document provides high level specifications for modifications to the PCS
TDMA MiniCell needed to support TeleCorp. Primary objectives of these
modifications are the following:
1. Provide support for any two (2) different PCS frequency blocks on every
sector of the MiniCell. This capability will give the service provider the
ability to perform radio frequency changes remotely from the MSC via
software command.
2. Reduce the antenna and antenna cable counts by providing double duplexing
tower top low noise amplifier (DTT-LNA). The DTT-LNA will not be block-
specific and will thus support multiple PCS blocks as discussed in item 1.
Specifications for multiple band support, final product:
The modified PCS TDMA MiniCell shall operate in any two(2) different PCS
frequency blocks on each physical antenna face (i.e., sector). It shall support
up to 8 traffic radios per sector, which can be allocated in any combination
between the 2 blocks. Radio channel assignments shall be made from the ECP
(using current APX RCV), and for a given radio, channel assignments within
either block will be allowed.
The modified PCS TDMA MiniCell shall be operated only with the double duplex
tower top Low Noise Amplifier (DTT-LNA). All current radio diagnostics shall be
supported. Antenna diagnostics shall be provided via the current transmit
antenna functional test.
The modified PCS TDMA MiniCell shall be available only in the current Type 3
configuration; requiring a primary and one growth cabinets as the minimum
configuration.
The current feature set shall be available.
Note that there may need to be certain restrictions on allowable combinations,
or spacing of channels due to intermodulation performance. For example, 2
channels that are spaced 20 MHz apart will cause a 3rd order intermodulation
product to fall directly on the receive frequency of the lower channel. This
situation should not be allowed. Every effort will be made to minimize these
situations, and the customer will be provided with equipage recommendations.
Specifications for multiple band support, interim product
The interim modified PCS TDMA MiniCell shall operate in any two(2) different PCS
frequency blocks on each physical antenna face (i.e., sector). It shall support
up to 8 traffic radios per sector and on each sector, a maximum of 4 per block,
which will be allocated in pairs between the two blocks. Radio channel
assignments within a block shall be made from the ECP (using current APX RCV).
In addition, each radio may be enabled and disabled from APX RCV.
The interim modified PCS TDMA MiniCell shall be operated only with the double
duplex tower top Low Noise Amplifier (DTT-LNA).
The interim modified PCS TDMA MiniCell shall be available only in the current
Type 3 configuration; requiring a primary and one growth cabinets as the minimum
configuration.
Specifications for the Double Duplex Tower Top Low Noise Amplifier:
The double duplex tower top LNA (DTT-LNA) shall consist of two parts: the Duplex
Masthead Antenna Unit (DMAU) and the Duplex Frame Receive Unit (DFRU). The DMAU
will be mounted on the antenna mast, near the antenna to minimize the cable
length. The DFRU shall be mounted within the MiniCell enclosure; it replaces the
current FRU used in non-duplex tower top applications. The combination of DMAU
and DFRU shall provide a common cable for transmit and receive signals for the
run up the antenna tower, and shall allow a common antenna to be used for
transmit and receive. DTT-LNA shall be required for both diversity receive
paths, when diversity is equipped, and both receive paths will be duplexed with
transmit paths if more than one traffic radio is equipped. The DMAU and DFRU
shall always be used together.
The DMAU and DFRU shall be designed to support 60 MHz base station transmit and
receive bands. The noise figure for the entire MiniCell receive path, measured
at the input of the DMAU, and including the combination of DMAU, up to 7 dB
antenna cable loss, DFRU, RF switch, EDRU and frame cabling shall not exceed 5.5
dB.
The DFRU shall provide DC power to the DMAU over the antenna cable. The DFRU
shall monitor the DMAU current alarm and report alarms to the remote ECP, in the
same manner as the current MAU/FRU combination.
ATTACHMENT H
ATTACHMENT H
EXTENDED WARRANTY PLAN
Upon the expiry of the warranty period applicable to any equipment, purchaser
may, at its option, subscribe to Vendors's extended warranty plan for the repair
and/or replacement of the hardware components of such equipment. The support
services provided by Vendor to Purchaser under the extended warranty plan shall
be equivalent to those services which were available to Purchaser in respect of
such equipment prior to the expiry of the warranty period relating to such
equipment. The price of subscribing to the extended warranty plan, during the
initial term, is set out below:
-----------------------------------------------------------------------------
TYPE OF ANNUAL PRICE (a)
NETWORK ELEMENT PER NETWORK ELEMENT
-----------------------------------------------------------------------------
5ESS Switch 2/% of Value of Out-of Warranty
Hardware
-----------------------------------------------------------------------------
PCS Access Manager 2% of Value of Out of Warranty
Hardware
-----------------------------------------------------------------------------
PCS Minicell $2,000 per PCS Minicell
-----------------------------------------------------------------------------
PCS Microcell 2% of Value of Out of Warranty
Hardware
-----------------------------------------------------------------------------
ATTACHMENT I
------------------------------------------------------------------------------------------------------------------------------------
1997 TDMA Plan:
Cellular & PCS
===============================================================================================================================
R9.0 (Cellular) R9/1 (PCS) R9.1 (Cellular) R10.0
CI 6/6/97 CI 6/27/97 GA 8/29/97 GA target 12/2/97
--------------------------------------------- ------------------------------ -----------------------------------------
. EDRU for 850 MHz - VSELP only . ACELP Phase 2, Switchable Per . Digital Locate - EDRU Support
. Visual Zone ID Call . DVCC with RSSI
. Carrier-Specific Teleservice Transport . Interhyperband (PCS-D to . Mobile Saturation
. OA&M Improvements Cellular A) Hand-down Resolution
. Analog Performance Enhancements: . TTLNA Support . Hybrid MAHO/Locate
------------------------------
- SAT SINAD for Voice . ARR
- Service Measurements -----------------------
Overhaul (Phase 2) PCS . IS-136 Private Networks
- Digital Color Code Tower Top ECP 10.0 . BER-Controlled DPC
---------------------------------------------
Low Noise GA 7/97
Amplifier . Rogue Mobile
-----------------------
Detection
-------------------
. IS-41 Facilities . Rogue Mobile
Directive 2 Identification
Messaging . AMUG 29-15 VCSA
-------------------
Trigger Type
. AMUG 29-16 CP
Failure Reason Msg
. E911 (ECP)
. HA OMP (ECP)
-----------------------------------------
--------------------
PCS C,D,E,F
band Filters
--------------------
===============================================================================================================================
1H97 Lucent Technologies Proprietary - Restricted 2H97
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
1998 TDMA Plan:
Cellular & PCS
------------------------------------------------------------------------------------------------------------------------------
R11.0 R12.0 R13.0 Candidates
FOA 1/98 GA target 9/98 GA target 4Q98
GA target 2/98 ------------------------------------------- -------------------------------------------
-------------------------- . Vocoder Relocation . Two-Branch Intelligent Antenna
. Interhyperband . IS-136 SMS Mobile Originated Phase 1
Operation (Digital to . R-Data over DCCH and DTC* . IS-136A Calling Name
Digital) - User Acknowledgment Presentation
. DCCH Info on AVC - Mobile Originated Messages . IS-130/IS-135 Circuit Mode Data &
Release . AMUG 36-12 Separate DCCH and Fax*#
. Service Meas Overhaul DTC "Access Thresholds . IS-136A Over the Air Activation*
Phase 3 . AMUG 35-17 HOBIT to AMPS (3 . Test-EDRU
. XTA support on S1lmm thresholds) . IS-54/IS-136 Signaling Message
. AMUG 35-06 Dual -------------------------------------------- Encryption
Server Group OOS 1999 Candidates -------------------------------------------
Limits --------------------------------------------
. AMUG 36-13 Chng . Flexible Channel Allocation
TDMA Trans Levels . Teleservice Screening Ph2
. AMUG 38-13 DS-1 . Hierarchical Cell Enhancements
Alarms Clearing after . 2 Branch Intelligent Antenna Xx0
XX-0 Board is Restored . PACA
. AMUG 28-29 Locate . Multiple DCCH's on a single EDRU
Count per Face . IMSI
-------------------------- . Mobile Station Locator
. Flexible Alerting
. Wireless Business Service
. SMS Broadcast
. Separate BER Thresholds for ACELP and
VSELP
. Discontinuous Transmission
. Enhanced Voice Privacy
. Automatic Call Delivery on Deregistration
. IS-136+
----------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
1 H97 Luccent Technologies Proprietary-Restricted 2 H97
-----------------------------------------------------------------------------------------------------------------------------------
Lucent Technologies Inc.
0000 XXX Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
May 12, 1998
Xxxxxx Xxxxxxxx
Xxxxxx Xxxxx
0000 00xx Xxxxxx, X.X.
0xx Xxxxx
Xxxxxxxxxx, X.X. 00000
Gentlemen:
Reference is made to the General Agreement for Purchase of Personal
Communications Systems and Services, dated the date hereof, between TeleCorp PCS
Inc. ("TeleCorp") and Lucent Technologies Inc. ("Lucent") regarding the purchase
by TeleCorp from Lucent of certain telecommunications systems and services (the
"Agreement"). In connection with the execution and delivery of the Agreement by
TeleCorp and Lucent, Lucent hereby agrees as follows:
1. Lucent hereby agrees that any Affiliate (as hereinafter defined) shall
have the right (but not the obligation) to purchase from Lucent
telecommunications systems and services under terms identical to the terms
contained in the Agreement; provided, however, that (a) Lucent shall be
reasonably satisfied with the credit worthiness of the Affiliate and (b) Lucent
shall not be required to provide financing to such Affiliate unless Lucent, in
its reasonable discretion, agrees to do so. If an Affiliate elects to purchase
equipment from Lucent on the same terms as the Agreement, Lucent agrees to enter
into an agreement ("Separate Agreement") with such Affiliate on the identical
terms as the Agreement, with only such changes therein as are appropriate to
reflect the markets to be covered by such Separate Agreement, the Affiliate
being the Customer, and similar changes; however, the pricing, warranty,
discount and other terms and conditions contained in the Agreement shall be
contained in the Separate Agreement (except for financing terms, unless
otherwise agreed to by Lucent). As used herein, the term "Affiliate" shall mean
any person, firm, partnership, corporation or other entity ("Company") operating
a wireless telecommunications system (a) which is, directly or indirectly,
controlled by, under common control with or controls TeleCorp;
or (b) which is controlled, directly or indirectly, by either or both of Xxxxxx
Xxxxxxxx or Xxxxxx Xxxxx (collectively the "Controlling Parties"). For purposes
of the foregoing definition of Affiliate the term "control" shall mean (a) the
ownership, directly or indirectly, of at least 50.1% of the voting control of
the Company, (b) a binding agreement or option to acquire at least 50.1% of the
voting control of the Company or (c) serving as a management or construction
management agent for an entity holding a construction permit or license to
operate a wireless telecommunications system or having an agreement to operate
such.
2. Entire Agreement. This Letter Constitutes the entire agreement between
----------------
the parties and supersedes any prior understandings, agreements or
representations by or between the parties, written or oral, to the extent they
related in any way to the subject matter hereof.
3. Counterparts. This Letter may be executed in counterparts, each of
------------
which shall be an original but both of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
4. Jurisdiction. The provisions of this Letter shall be governed by the
------------
internal laws of the State of New York, without regard to its principles of
conflict of laws.
5. Notices. All notices to a party hereunder shall be deemed to have been
-------
adequately given if delivered in person or mailed, certified mail, return
receipt requested, to such party at its address set forth below (or such other
address as it may from time to time designate in writing to the other parties
hereto):
To Lucent: Xxxxx Xxxx Head
Suite 980
00000 XXX Xxxxxxx
Xxxxxx, XX 00000
with a copy to: Xxxx X. Xxxxxxx
Corporate Counsel
000 Xxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
000-000-0000
000-000-0000 (facsimile)
To Controlling Parties: Xxxxxx Xxxxxxxx
Xxxxxx Xxxxx
0000 00xx Xxxxxx
0xx Xxxxx
Xxxxxxxxxx, X.X. 00000
6. Succession and Assignment. This Letter shall be binding upon and inure to the
-------------------------
benefit of the parties named herein and their respective successors and
permitted assigns. Please confirm your agreement to the foregoing by executing
the counterpart of this letter and returning it to the undersigned.
Very truly yours,
LUCENT TECHNOLOGIES, INC.
By: /s/ [signature illegible]
-------------------------
Name:
-------------------------
Title:
-------------------------
AGREED TO AND ACCEPTED
AS OF 12 May, 1998
/s/ Xxxxxx Xxxxxxxx
--------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxx
___________________________
Xxxxxx Xxxxx
May 12, 1998
Lucent Technologies Inc.
0000 XXX Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx Xxxx Head
------------------------------
Reference is made to the General Agreement for Purchase of Personal
Communications Systems and Services, dated the date hereof, between TeleCorp
PCS, Inc. ("TeleCorp") and Lucent Technologies Inc. ("Lucent") regarding the
purchase by TeleCorp from Lucent of certain telecommunications systems and
services (the "Agreement"). Capitalized terms used in this letter, unless
otherwise defined herein, shall have the meanings ascribed to them in the
Agreement. In connection with the execution and delivery of the Agreement by
TeleCorp and Lucent, and as a condition thereto, TeleCorp and Lucent have agreed
as follows:
1. The Minimum Market Commitment set forth in Section 1.4 of the Agreement
shall be expanded to include San Diego and Puerto Rico, provided (i) TeleCorp
acquires these markets from AT&T Wireless and TeleCorp, its sole discretion,
elects to build out the Initial System for each such Market and (ii) at the time
that TeleCorp acquires these Markets and, in its sole discretion, elects to
build out the Initial System for each such Market, Lucent has theretofore
performed, on a timely basis, all of its obligations under the Agreement in
accordance with the terms of the Agreement and is not in default of any of its
obligations under the Agreement.
2. On or before September 30, 1998, TeleCorp shall have submitted to Lucent
binding purchase orders to purchase $40 million in aggregate purchase price (or
license fees with respect to Licensed Materials) of Products, Licensed Materials
and Services.
3. Seller agrees that it will support Phase I of the FCC requirements regarding
E-911 services and the FCC requirements regarding CALEA and, with respect to the
Initial System for each Market, will provide Customer as part of the Initial
System for each Market, at no additional charge(with the exception of any third
party equipment, software or services), all Products, Licensed Materials and
Services required to permit Customer to provide such services to its subscribers
in accordance with
applicable FCC requirements as in effect at the date of Acceptance of such
Initial System.
CONSENTED AND AGREED:
Lucent Technologies TeleCorp PCS, Inc.
By: /s/ [signature illegible] By: /s/ Xxxxxx X. Xxxxx
------------------------------ -----------------------------
Name: Name: Xxxxxx X. Xxxxx
------------------------------ -----------------------------
Title: Title: CEO
------------------------------ -----------------------------
Date: May 12, 1998 Date: May 12, 1998
------------------------------- -----------------------------
